Today the Kenyan High Court ruled to uphold a colonial-era law criminalizing same-sex sexual behavior. Advocates have been fighting tirelessly for LGBTIQ rights in Kenya, bringing this case to challenge Kenya’s penal code in 2016. Same-sex relations are currently classified as a crime in 70 countries and territories around the world, and almost half of them are in Africa; Kenyan activists were hoping the decision today would set a positive precedent for other countries in East Africa.
Under Kenya’s penal code Section 162, any person (of any gender) who has “carnal knowledge against the order of nature” can be found guilty of a felony and liable to imprisonment for 14 years. Additionally, penal code Section 165 provides basis for convicting any man, whether in public or private, who committed any act of “gross indecency” with another man of a felony liable to five years imprisonment.
The laws have been historically used to persecute and intimidate gay, lesbian, bisexual, and transgender people in the country.
“The decision by Kenyan Court is on the wrong side of history. It is also a missed opportunity for Kenya to model for the world that LGBTIQ rights are human rights,” said MPact Executive Director Dr. George Ayala. ”We stand ready to support our Kenyan allies.”
Criminalization of same-sex behavior is not only a gross violation of human rights: criminalization of homosexuality exacerbates gay men’s vulnerability and HIV risk by driving them underground. Not just in Kenya, but globally, gay and bisexual men, especially ethnic minority gay men and gay men of color, continue to shoulder high rates of HIV and STI prevalence and incidence.
MPact has been working in Kenya since our inception, including supporting the organizational and technical capacity of civil society groups across Kenya. This includes PEMA, whose work largely focuses on the sensitization of healthcare providers and religious leaders; Jinsiangu, which works to promote the rights of transgender people and to ensure that transgender people are included in National AIDS Strategic Plans; and Ishtar MSM, which has been a long time partner in researching the effects of punitive laws and practices on the health and wellness of gay and bisexual men in the region.
Our program with Ishtar, Action for Access!, has found that a highly stigmatizing environment contributes to an internalized fear of being “found out,” resulting in gay and bisexual men’s hesitancy to seek sexual health services. For example, gay men described how stigma and discrimination on the part of health providers often resulted in gay and bisexual men abandoning lifesaving health services. These findings suggest that the decriminalization of same-sex relations will be an important step toward not just justice, but all-around well-being for gay men in the country.
In 2010, Kenya adopted a new constitution, which includes stipulations about equality, human dignity and freedom from discrimination. Advocates argued at the High Court that penal code Sections 162 and 165 are in direct contradiction to these values enshrined in the constitution. Unfortunately, the presiding judges based their decision on false, outdated information and ambiguous “values” to continue to undermine the human rights and basic dignity of LGBTIQ Kenyans.
The months leading up to the ruling have “been a journey to try and create spaces for community to come together,” said Jeffrey Walimba of Ishtar. They are optimistic that one day, “we will be able to work in a free environment devoid of fear, intimidation, criminalization and discrimination, as stated in the [2010 Kenyan] constitution.”
Kenya’s upholding of penal code Sections 162 and 165 is proof that we need to increase our global investment in community-led advocacy and coalition-based approaches. Advocates will continue to work to realize the full human rights of all Kenyans: already discussion has begun about an appeal to today’s decision. Additionally, activists on the ground are committed to achieving universal health coverage by facilitating access to safe, affordable, stigma-free and high-quality sexual health services; lifting the censorship on media content portraying same-sex relations, and permitting full, open access to information related to sexual orientation and gender identity; and promoting acceptance and inclusion of LGBT Kenyans and the LGBT Kenyan Diaspora fully with their families and communities.
There are many serious challenges to uprooting homophobia and transphobia and ensuring that health care providers are adequately knowledgeable to serve our communities. As MPact continues its fight for gay men’s rights and health around the world, this ruling only encourages us to work harder.
#WeAreAllKenyans #LoveIsHuman #Repeal162 #DecriminalizeLGBT
Photo: “Rainbow Flag” by Stock Catalogue used under CCBY2.0