Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) individuals across the world, and particularly on the African continent, have often been on the receiving end of violence. They suffer from stigma, discrimination, physical and verbal abuse, assault, and harassment. In recent years, campaign groups dedicated to these important issues have ardently taken it upon themselves to denounce and dismantle laws that perpetuate human rights violations and acts of violence against LGBTQ communities. That’s why my organisation, the Gay and Lesbian Coalition of Kenya (GALCK), and our allies, are pursuing a momentous court case for the decriminalization of consensual same-sex sexual activity in Kenya.
On the 22nd and 23rd of February 2018, and again on the 1st of March, consolidated petitions 150/2016 and 234/2016 were heard by a three-judge bench at the High Court of Kenya, about whether provisions of the Penal Code penalizing homosexual activity violate our constitution. By bringing this case, GALCK and our allies in the LGBTQ community, the National Gay and Lesbian Human Rights Commission (NGLHRC) and the Nyanza, Rift Valley and Western Kenya Network (NYARWEK), are determined to bringing violations committed against our constituents to the forefront of Kenya’s human rights debate, and end this discrimination for good.
Our petitions call upon the court to declare sections of the law that discriminate against LGBTQ people unconstitutional, and a violation of the rights guaranteed to all Kenyans in the Bill of Rights of the 2010 Constitution of Kenya. These include the right to privacy, dignity, health, equality and non-discrimination, and freedom and security of the person. If successful, the case has the potential to change the tide for sexual orientation, gender identity and expression in Kenya and across the African continent.
The bill of rights under article 27 of the Kenyan constitution provides that “every person is equal before the law and has the right to equal protection before the law”. The article doesn’t exclude homosexuals from the ambit of constitutional protection. Moreover, article 27(4) prohibits discrimination on the grounds of “sex”, understood to include sexual orientation. The constitution eliminates all wiggle room by prohibiting both direct and indirect discrimination.
We’re bringing legal action because these fundamental, constitutional rights are not being realised by LGBTQ Kenyans. Under current Kenyan Law, LGBTQ individuals cannot even express attraction without running the risk of being prosecuted, and existing Kenyan law also criminalises sex between two consenting same sex adults. Denoted in the Penal Code, any sexual practices between males (termed “gross indecency”) are a felony and are punishable by 5 to 14 years imprisonment. Furthermore, these punitive anti-LGBTQ laws do not recognise any relationship between persons of the same sex. These laws create a misguided perception in society that LGBTQ individuals should be considered criminals.
The subsequent violence meted upon these individuals, both at a state level and through vigilante justice or domestic violence, causes lasting damage to their health and quality of life. GALCK receive cases of men who have been brutally beaten because their family or neighbours found out they were gay. Or incidents where individuals go to the police seeking help only to have the police threaten and harass them. In one such case where our client tried to report blackmail, he was pushed into a cell by police officers, verbally abused, and harassed as he was seen to be engaging in “indecent behaviour”. These are not the national values Kenyans aspire to.
As Eric Gitari of the NGLHRC states, “We have a constitution that carries the will of the Kenyan people and that says no one should be discriminated against, yet these laws do just that.” We’re heartened by successes across the Commonwealth, where LGBT activists have been instrumental in achieving legal change in their countries, including in Belize, the Seychelles and Mozambique. These are our allies in the Commonwealth Equality Network, and we’re proud to stand in solidarity with them. By bringing this legal action, my hope is that Kenya will be the next Commonwealth country to realise LGBTQ equality.
The views and opinions expressed are those of the author and do not necessarily represent those of The Royal Commonwealth Society.