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Kenya's Judges Uphold Laws That Criminalize Gay Sex

May 24, 2019

Kenya's High Court has chosen to uphold colonial-era laws that criminalize gay sex, dashing the hopes of activists who believed the judges would overturn sections of the penal code as unconstitutional and inspire a sea change across the continent.

Three judges said Friday that the laws in question did not target the LGBTQ community. They were not convinced that people's basic rights had been violated, they said.

"We are not persuaded by the petitioners that the offenses against them are overboard," one of the judges said, according local media.

The case stems from to a petition filed in 2016 by activist Eric Gitari, with the support of organizations serving LGBTQ Kenyans. They argued that two sections of Kenya's penal code violated people's rights: Article 162 penalizes "carnal knowledge ... against the order of nature" with up to 14 years in prison, and Article 165 castigates "indecent practices between males" with the possibility of five years' imprisonment.

The judge in that case concluded Gitari's concerns were "weighty and require debate," sending it to a bench of judges.

The anti-gay laws were imposed by British colonists and they remained a part of Kenyan law after independence in 1963.

The measures have not been widely enforced — Human Rights Watch said it was aware of just two prosecutions against four people in the last decade. Instead, the organization says, the laws have served as a pretense to mistreat LGBTQ people, who report harrowing accounts of being forced into sex, discriminated against at work, suspended from schools, pressured into paying off authorities and other abuses.

Supporters of the upheld laws were jubilant. "We cannot be another Sodom and Gomorrah," Catholic bishop Alfred Rotich told Reuters at the courthouse, as proponents held signs saying "homosexuality is an abomination."

The ruling dealt a sharp blow to advocates for LGBTQ rights.

Neela Ghoshal, a senior LGBT rights researcher at Human Rights Watch, said in a statement that the court had relegated same-sex couples to second-class citizens. "Rights cannot be trampled upon in the name of social disapproval. The Court of Appeal should revisit this ruling urgently," she said.

UN High Commissioner for Human Rights Michelle Bachelet told Kenyans to never give up. She said the ban on same-sex relationships "sends a dangerous signal to broader society and encourages hostility and even violence against LGBT individuals."

There had been cause for hope in the gay community. Kenya's Court of Appeal ruled last year that carrying out forced anal examinations on people charged suspected of homosexuality violated laws on cruel and degrading treatment.

Gitari, who filed the 2016 petition, told The Associated Press he worried that the decision would engender violence against the LGBTQ community. "What will happen is that more and more people are going to closet themselves, they are going to live in shame and fear," he said Friday.

Other countries in Africa have moved to end punishments for gay people. Angola, Seychelles and Mozambique are among the countries that have changed their penal codes to stop criminalizing homosexuals.

Activists vow to appeal Friday's ruling. Human Rights Watch says 33 countries in Africa continue to outlaw gay sex.

The decision follows the death of a prominent Kenyan voice for LGBTQ rights earlier this week. Binyavanga Wainaina was 48.

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