Things have taken a disappointing turn as Kenya’s High Court will not decriminalise same-sex relations in a ruling that would have been historic for the East African country.
Gay sex is punishable by up to 14 years in prison. The country is among 32 countries on the continent that criminalises same-sex relations.
The three-judge bench in their ruling said that the petition did not show that people who are perceived as gay suffer discrimination.
Countries across Africa have inherited the Penal Code from their previous colonial masters and Kenya is the first African country under common law jurisdiction to petition for the repeal of that part of the law. (Source @KELINKenya).
The court in their ruling also said that the petitioners did not provide proof that sexual minorities are discriminated against in accessing health care. While Lady Justice Aburili was delivering the judgement, she said: “Decriminalizing the conduct in the sections would open a door to same-sex unions which would go directly against the spirit of Article 45 of the Constitution on marriage.”
The court also added that there is no scientific evidence that same-sex relations are natural. They mention that disagreeing with public opinion goes against the constitution as it represents the values of the people.
The decision to dismiss the case comes at a time when other countries across the world are decriminalising their anti-gay laws. In January 2019, Angola repealed its anti-gay laws that it had adopted through colonialism and Taiwan recently announced that same-sex unions are now legal, becoming the first country in Asia to do so.
In a statement, Amnesty International Kenya said the decision is “a major setback to the human rights discourse especially with regards to equality and non-discrimination.”
Community members have gone on social media to express their disappointment.
Wow! We are now in burden of proof manenos. “Anyone who alleges a violation must prove it.” Legal burden of proof is on the peritioner and this judge clearly thinks insufficient evidence was presented! I think these fuckers are telling us to fuck off! #Repeal162 pic.twitter.com/43A9IerPuK
— #Repeal162 (@amgodiva) May 24, 2019
Not sure how Queer people are supposed to record each and every single violation so we can bring it to court as proof. #Repeal162 https://t.co/knSe5GZhKp
— Afroqueerpodcast (@Afroqueerpod) May 24, 2019
The implications of Kenyan High Court judgement to LGBTQIA+ legal activism in Kenya and potentially the wider Africa is that the decriminalization of consensual same-sex conduct is now tightly bound to the right for same-sex couples to marry.
— Decolonially Queer (@decolonialqueer) May 24, 2019
A court that had received precedence from Angola & India still went ahead and upheld a dranconian section! Soon harmful ethos of religion will catch up with Kenya! Today, the LGBTIQ community have been shunned by the very system that was established to protect us all #repeal162 https://t.co/7USYTtLkc1
— Dr.Bosire Wairimu (@Lasterbosire) May 24, 2019
My heart is so, so sore for the entire LGBTQIA community. That the enjoyment of the full breadth of your rights is dependent on the interpretation of laws. But Kenya will see decriminalization in our lifetime. I’m certain of it. May your hearts hold fast. #Repeal162
— Dora (@bellelinde) May 24, 2019
I can’t imagine what it feels like to be a member of the LGBT community in Kenya after the High Court refused to #Repeal162. Just know that even if you continue being hated and discriminated by a majority of Kenyans, some of us are rooting for you. Aluta continua!!!
— Ralph Wahome (@wahomeralph) May 24, 2019
We have shown you our scars. We have given you our labour. We have told stories, repeatedly. We have bled, we have starved, we have died. And still. You find no reason for the pain to end.
— Kiko Enjani ⚓ (@KikoEnjani) May 24, 2019
Cos you like to watch.
#Repeal162
We continue to cherish colonial laws & protected them – their heritage is called “culture” that we are ready to die or kill for. We need to reflect #Repeal162 is “Ubuntu” – it is human-ity; allowing others to exist w/o négociating their existance.
— Nelson Gashagaza (@NelsonGashagaza) May 24, 2019
Sad but A luta Continua
High Court in Kenya has upheld the #Repeal162. SAD!
— waikwa wanyoike (@waikwawanyoike) May 24, 2019
Kenya remains among countries that laws are used to persecute #LGBTQ. SHAME!
But battles for personal freedoms like those for political freedoms are won through PERSISTENCE.
Be sure we have not seen the last of this YET pic.twitter.com/udEle4MzaJ
Yikes! This is by far the most homophobic and poorly-reasoned court judgment I’ve had to listen to in a long time! #Repeal162
— Owiso Owiso (@O_Owiso) May 24, 2019
SALC is disappointed with the Kenyan High Court ruling, upholding the constitutionality of the criminalisation of same-sex sexual conduct. This is contrary to international human rights law & inherent human dignity. We stand in solidarity with Kenyan LGBTQ persons #Repeal162
— SALC (@Follow_SALC) May 24, 2019
Sadly Kenya has missed the chance to decriminalise ❤! No one shd have the power to choose who you love or not #Repeal162
— FrankTZW (@FTKZimula) May 24, 2019
Sending love to our Queer family
— Poloko Gaethijwe (@Pk_Gaethijwe) May 24, 2019
in Kenya,we may not be there
physically to support you but we
are with you spiritually.Your pain
is our pain.#Repeal162
A big hug to the LGBTQ community in Kenya… We hope you are surrounded by love.#Repeal162 @Galck_ke @NGLHRC @HoymasK @nyarwekC @q_eldoret @eastafricatrans @Jinsiangu @INENDorg @intersex_kenya https://t.co/QCXk9uZ8jT
— Love Matters Africa (@lovemafrica) May 24, 2019
SALC is disappointed with the Kenyan High Court ruling, upholding the constitutionality of the criminalisation of same-sex sexual conduct. This is contrary to international human rights law & inherent human dignity. We stand in solidarity with Kenyan LGBTQ persons #Repeal162
— SALC (@Follow_SALC) May 24, 2019
It is unclear if the ruling will be appealed but The Rustin Times will continue to follow the story.
We also understand that this is a difficult time for Human Rights defenders not just in Kenya but across the continent. We will continue to be a voice for the LGBT community and support the brave individuals fighting for equality and our freedom. We stand in solidarity with our brothers and sisters in Kenya.
Aluta Continua!
