Kenya court heads toward ruling on anti-gay laws

As a Kenyan high court heads toward a decision on whether to overturn the country’s two anti-LGBT laws, homophobic Kenyans are worried.

Logo of the National Gay and Lesbian Human Rights Commission of Kenya
Logo of the National Gay and Lesbian Human Rights Commission of Kenya

The case was brought by Kenya’s National Gay and Lesbian Human Rights Commission (NGLHRC), a Nairobi-based LGBTI rights advocacy group that seeks to overturn the Kenyan Penal Code’s Sections 162 and 165.

Section 162 provides for up to 14 years in prison for sexual intimacy between men (“carnal knowledge of any person against the order of nature”).

Section 165 provides for up to five years in prison for “gross indecency with another male person.”

The first court hearing on the case was last month. The next one is scheduled for Feb. 22.

Eric Gitari of the National Gay and Lesbian Human Rights Commission of Kenya speaks in Washington, D.C. (Photo by Michael K. Lavers courtesy of the Washington Blade.)
Eric Gitari of the National Gay and Lesbian Human Rights Commission of Kenya speaks in Washington, D.C. (Photo by Michael K. Lavers courtesy of the Washington Blade.)

Eric Gitari, a lawyer and executive director of the NGLHRC, told the court that both sections are discriminatory and violate constitution provisions, including the right to equality, freedom from discrimination, human dignity, freedom and security of the person and right to privacy.

Anti-LGBT advocates have been arguing loudly in favor of the two anti-gay laws.

CitizenGo Africa said that “judicial activism on matters LGBT is the worst mistake being committed on Kenyan soil at the moment.”  The group called for a referendum on the issue, confident that most Kenyans oppose homosexuality.

Although the court case is locally originated, Abu Ayman Abusufian, the spokesman for a Nairobi mosque, blamed it on foreign gay-rights advocates.

Abu Ayman Abusufian (Photo courtesy of the Daily Nation)
Abu Ayman Abusufian (Photo courtesy of the Daily Nation)

“Kenyans should join hands to resist the blind importation of practices that threaten to pollute religious and cultural values that they hold dear to their hearts,” he wrote in Kenya’s Daily Nation.

Gay Star News reported that Kenyan activists say that at the High Court’s three-judge panel “the case could go either way, as one judge is in favour of decriminalisation, one isn’t, and the other is undecided.”

Kenyan activist journalist Denis Nzioka noted that Kenyan judges have issued several  progressive decisions lately, including rulings against female genital mutilation and in favor of giving women more access to abortion rights.

However, Gay Star News noted “some instances of anti-LGBTQ stances being taken by officials, with Disney Channel show Andi Mack being banned in the country for featuring a gay character, and an official saying that two lions caught having gay sex should be sent for counselling.”

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Written by Colin Stewart

Colin Stewart is a 45-year journalism veteran living in Southern California. He is the president of the St. Paul’s Foundation for International Reconciliation, which supports LGBTQ+ rights advocacy journalism, Erasing 76 Crimes. Contact him at [email protected]

3 Comments

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  1. I had the great fortune to sit on a panel with a Justice of the Kenyan High Court in 2016. She sent me a beautiful letter thanking me for explaining the hardship these laws cause to LGBTQI people, speaking about the persecution and exile it causes, and she said she was open to a better understanding of sexuality and gender identity. She told me that in one panel discussion she learned so much. I was very touched by her openness and willingness to look at this in a different light. It is so hopeful. Given the judiciary makeup, their understanding of the Constitution, and the fact that they are not politically motivated like the politicians who create and promote the bad laws, I am hopeful that the judiciary could pave the way through its reflection on the constitution, for decriminalizing sexuality and gender identity.

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