Kenya upholds law criminalising gay sex

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Kenya’s High Court has ruled against campaigners seeking to overturn a law banning gay sex.

The judges rejected claims that the colonial-era law violated the new constitution, which guarantees equality, dignity and privacy.

The penal code criminalises “carnal knowledge against the order of nature” – widely understood to refer to anal intercourse between men. 

Gay sex is punishable by up to 14 years in prison.

Kenya’s National Gay And Lesbian Human Rights Commission says it has dealt with 15 prosecutions under the penal codes in 2018, with no convictions.

But it had argued for the law to be scrapped because it gives rise to a climate of homophobia. 

In 2016, LGBT rights activists filed a case with Kenya’s High Court saying that homosexual relations should be decriminalised. They argued that the state has no business regulating matters of intimacy.

The case wasn’t heard until February 2018 and a verdict was initially expected in February 2019 – but delayed until Friday.

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What did the judges say?

  • “We find the impugned sections (of the penal code) are not unconstitutional. We hereby decline the relief sought and dismiss the consolidated petition,” said presiding judge Roselyne Aburili.
  • The constitution still outlaws same-sex marriage but allowing gay sex would “open the door for same sex unions.”
  • There was “no conclusive scientific proof that LGBTQ people are born that way” she added.
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What has the reaction been?

  • “The High Court of Kenya legitimizes homophobia by upholding a colonial culture of exclusion, discrimination and violence against minorities” – The Kenya Human Rights Commission.
  • “We will appeal. We expect that the court of appeal will overturn this erroneous decision which in our view is very biased,” said Eric Gitari, one of the petitioners.
  • Catholic bishop Alfred Rotish welcomed the ruling. “We cannot be another Sodom and Gomorrah,” he told Reuters news agency.
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What’s the gay scene like in Nairobi?

Megha Mohan, BBC Gender and Identity reporter

Two men holding hands

There are unofficial gay clubs and advertised events in Kenya’s cities.

“The LGBT community in Kenya have created an amazing tribe and culture for themselves,” says Brian Macharia, an activist for the Gay and Lesbian Coalition of Kenya.

“There is a ballroom scene, a drag scene – vibrant bisexual community, a lesbian scene. Young people are driving the community forward through social media.”

Gay men also use dating apps – although visitors with international roaming do get a warning about the legal status when logging in while in Kenya.

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The judges ruled that while they respected changes to laws banning gay sex in other countries, it was the court’s duty to respect prevailing Kenyan values. 

Many Christian and Muslim groups support the current law, and the Kenyan attorney-general had argued against decriminalisation. 

Many African countries still enforce strict laws governing homosexuality, in most cases a legacy of laws imposed by the colonial rulers.

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