On the 22nd of February 2019, Kenya's High Court wanted to decide whether the sections of the Kenyan penal code that proscribe homosexual activity are unconstitutional. The decision has been postponed to the 24th of May. A disappointment for the Kenyan National Gay and Lesbian Commission (NGLHRC), fighting to repeal these laws for years.
Kenya’s penal code, which dates back to the colonial era, states that sex between men is a crime punishable with up to 14 years imprisonment, while a man attempting to have sex with another man can be imprisoned for up to seven years.
The two sections are still in force although they essentially contradict Kenya’s 2010 constitution. The preamble of the 2010 constitution recognizes the aspirations of all Kenyans for a government based on essential values of human rights, equality, freedom, democracy, social justice, the rule of law. The #Repeal162 movement and campaign is just one of the many initiatives that call for the recognition and protection of the rights of the LGBTI community in Kenya. It is currently fighting in two court cases to have those sections and paragraphs of the penal code that target homosexuality declared unconstitutional, and therefore inapplicable, in Kenya. The High Court in Kenya will make its ruling on 22nd February 2019.
Specifically, chapter four of the constitution which is the bill of rights, provides for several rights and fundamental freedoms, which among others provide that the state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The chapter also clearly states that every person has inherent dignity and the right to have that dignity respected and protected.
Discrimination of LGBTI people
In 2010, Kenya promulgated its constitution which marked the end of a two-decade struggle for reforms. The penal code, however, was not reformed, meaning that the situation for LGBTI persons in Kenya remains precarious not only from a legal standpoint and encourages arbitrary arrests and detentions by police. The provisions in the penal code that vaguely penalize consensual private sexual acts of two adult persons have been – and still are being – used as the basis of attacks, incarceration and discrimination of LGBTI persons in Kenia. As a result, persons of particular sexual orientation, sexual conduct and gender identity have been denied access to quality health care services and have been subjected to violence and killings.
Between 2010 and 2014, close to 600 men were reported to have been charged with having “carnal knowledge against the order of nature” and indecent acts between adults. Kari Mugo, National Gay and Lesbian Commission (NGLHRC) Operations Manager stated:
The NGLHRC legal aid centre sees year in, year out, reports of sexual assault, physical assault, verbal assault, exclusion from social space and workplace discrimination, ‘corrective’ rape of lesbian women as a worrying trend. LGBTI people are violated, simply because of their perceived or actual sexual orientation. This particularly affects Kenyans and refugees who have lower or middle incomes because they don’t have the same access to [legal or social] protection.
Violence against LGBTI persons is an irrefutable violation of the non-discrimination provision of the Kenyan constitution, the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights – instruments that have been recognized as part and parcel of Kenyan law. Such violence is still silently condoned on the basis of the penal code provisions described above.
It is against this background that the Heinrich Böll Foundation East & Horn of Africa Regional Office, in collaboration with the NGLHRC, has held community consultations with over 1000 LGBTI persons and allies in different counties in Kenya. The consultations revealed that what was particularly lacking was legal aid.
Support and education
The foundation has therefore trained 400 paralegals in Kenya; these paralegals are the first respondents to reports of violations and discrimination of LGBTI persons within their counties. They are trained to respond to reports of violations within their constituents, record the claims, preserve evidence, refer survivors to friendly emergency service providers and serve as a liaison between the client and the authorities. This ensures that sexual and gender minority groups are supported in gaining access to justice within a repressive context.
Another problem besides the lack of legal aid is the dearth of information about LGBTI affairs within the judicial branch. Up until the year 2013, there had been little to no legal precedence or convictions related to discrimination against LGBTI persons. Although it is the task of jurisprudence to advance the realization human rights, there is barely any information about violations of the rights of LGBTI persons. In light of this, the foundation in 2017 launched the first Sexual Orientation, Gender Identity and Expression Moot Court and Debate competitions for universities in Kenya. The project provided an environment within which the legitimacy of LGBTI persons could be explored and examined through the legal lens by the next generation of lawyers, judges and political leaders.
The project not only initiated a learning curve but also confirmed the need for sustained engagement with young legal minds in simulations of the lived realities of sexual and gender minorities in Kenya. The project facilitates the creation of alliances among LGBTI persons at universities as well as contacts among LGBTI persons and practicing lawyers and members of the judiciary, while also expanding the network of equal rights advocates in the country.
Violation of the Kenyan constitution
In addition, the Heinrich Böll Foundation, in collaboration with the NGLHRC, has responded to over 2000 cases of violation and discrimination of persons on grounds of their sexual orientation and gender identity by the provision of legal aid. Legal aid has enabled access to justice through formal representation for the LGBTI community and also enabled for systematic documenting of the said violations and identifying suitable cases for public interest litigation.
It is through this work that NGLHRC petitioned the court on the unconstitutional medical procedure and examination of persons who identified as LGBTI or were perceived to identify as such. The said persons were subjected to forced blood testing, HIV and anal examination without their consent. The manner in which the procedures were undertaken was non-consensual, degrading, undignified and therefore unconstitutional and a violation of their rights. The petition saw the court declare forced anal testing and other non-consensual medical procedures unconstitutional and a violation of rights and consequently called to a stop of the same.
The next step for the LGBTI community in Kenya is to put an end to the criminal prosecution of homosexuality as prescribed by the penal code. The constitution expressly provides for bringing existing laws in line with the constitution through interpretation, amendment and modification.
It is against this background that the two cases were initiated to repeal the criminal prosecution of homosexuality and that the #Repeal162 was movement founded under the leadership of the NGLHRC and two other organizations.
#Repeal162 is not about same-sex marriage, non-consensual same-sex activity or sex with minors. It’s quite simply about consensual behaviour, about what the constitution allows adults to do in the privacy of their homes,
says Njeri Gateru, Head of Legal Affairs of the National Gay and Lesbian Human Rights Commission (NGLHRC).
These legal proceedings seek to have the Kenyan court give meaning to the provisions of the constitution which are offended by the application of the provisions of sections 162(a)(c) and also seek to have section 165 of the penal code declared null and void.
The Heinrich Böll Foundation, LGBTI persons, advocates and activists are keen to see the court uphold the petitions and thereby decriminalize homosexuality, as this will not only form jurisprudence and precedence for further realization of rights but will also set the tone and shape the manner with which rights for LGBTI persons in the country can and will be realized.
 National Gay and Lesbian Commission’s 2014 annual report.