Last year, right around Pride month, The National Gay and Lesbian Human rights Commission filed a suit to declare section 162 and 165 of the penal code unconstitutional.
These clauses outlaw 'carnal knowledge against the order of nature and indecent acts between males whether in public or private'.
These 'crimes' are punishable with up to 14 years imprisonment. While it is not illegal to identify as Lesbian, Gay, Bisexual, Transgender or Queer (LGBTQ) in Kenya, laws like this criminalize anyone who identifies under this umbrella and provides a caveat for gay people to be harassed and arrested.
The petitioners appealed to the High Court to declare sections of the Penal Code that discriminate against members of the LGBTQI community as unconstitutional. If a law violates the inherent human rights of a person then it is said to be unconstitutional and cannot be applied. This process of removing criminal laws which violate the constitution is called decriminalization.
The High Court dismissed the petition. In their decision, the three judge bench -Lady Justice Roselyn Aburili, Justice Chacha Mwita and Justice J. Mativo-found that the petitioners failed to convince the court that the clauses were used to discriminate against the sexual and gender minorities.
The bench insisted that the clauses did not, in fact, discriminate against sexual minorities or violate their constitutional rights to privacy and equality. In a unanimous decision, the three judges averred that the sections were not particular to LGBTIQ+ persons, that they were a block, covering anyone who engaged in "un-natural" acts.
This was a blow to the LGBTQ community and anyone who cares for human rights as enshrined in the constitution.
All is not lost though. The National Gay and Lesbian Human Rights Commission announced that they'll be appealing and will have their day in court later this year.
How can you support or contribute to the discourse on LGBTQ+ rights in Kenya?
- Financial support- Strategic Litigation doesn't come cheap. Consider donating towards this cause.
- Speak out - Be the voice, be an active ally. Speak out against violence, discrimination and any Human Rights Violation against LGBTIQ+ persons
- Donate in Kind - your services, expertise pro-bono.
- Contribute to the conversation on twitter under the hashtag #Repeal162
