Tuesday, May 28, 2019

Kenya High Court Rules that Decriminalizing Same-Sex Relations Contradicts Constitutional Values

Last week, Kenya’s High Court ruled to maintain Sections 162 and 165 of the penal code, relics of the colonial era, which prohibit same-sex sexual activity or “carnal knowledge against the order of nature”, and prescribe a jail sentence of up to 14 years for those found guilty. The key argument, which stands in stark opposition to international human rights standards and recent verdicts from other jurisdictions, centered around the fundamental importance of family, as defined by marriage between people of the opposite sex, and argued that decriminalization of same-sex activity would lead to same-sex marriage.

The case challenging this law was initiated in Nairobi by the National Gay and Lesbian Human Rights Commission, the Gay and Lesbian Coalition of Kenya (GALCK), and the Nyanza, Rift Valley and Western Kenya Network (NYARWEK). Together with other partners, they argued that the laws stand in breach of the assurance of protection from discrimination and the right to human dignity and privacy for all prescribed in the country’s constitution.

In a ruling that lasted almost two hours and quoted both international case law and national provisions protecting the family, culture and religion, Justice Aburili, Justice Mativo and Justice Mwita stated that the contested provisions do not target a specific group of people, but rather “any person”, and therefore cannot be considered discriminatory. Furthermore, the judges argued that Sections 162 and Sections 165 do not violate the right to dignity or privacy of LGBTIQ individuals. Ultimately the petition to declare these colonial-era laws unconstitutional was dismissed on the grounds that “decriminalizing same-sex sex would contradict the provisions of article 45 sub-article 2”, which defines marriage as between persons of the opposite sex and “would indirectly open the door to same-sex unions" which “would be against values of the constitution”.

Njeri Gateru, NGLHRC’s Executive Director, commented on the negative ruling, saying, “The continued existence of these long outdated laws gives a green light for harassment and discrimination of LGBTQ people. The ruling issued today is a horrific reminder of this. It establishes once again that LGBTQ people in Kenya are not only second-class citizens, but even criminals, merely for loving whom we love. We are extremely disappointed with the ruling today, but it will not stop us from continuing our struggle for recognition, tolerance, and respect, because #WeAreAllKenyans and #LoveIsHuman,”

Jessica Stern, Executive Director of OutRight Action International, responded to the Kenyan decision with the following statement: 

“The argument of the High Court of Kenya is flawed. Dismissing a petition to decriminalize same-sex sexual activity because it may indirectly open the door to petitions for equal marriage fails to consider the case at-hand in favor of an arbitrary future, which, frankly, is absurd. In doing so, the High Court has re-established, in the harshest terms, that human rights for LGBTIQ people are conditional. This gives the green light for discrimination, harassment, and violence. The defense of a colonial era law puts the Kenyan High Court out-of-step with the cutting edge jurisdiction globally, including the wave of decriminalization verdicts around the world from Belize to Trinidad & Tobago, to India most recently. We eagerly await the day LGBTIQ Kenyans truly get their day in court. Eventually, LGBTIQ Kenyans will prevail.”