Kenya to rule on decriminalizing same-sex relationships

Kenya's high court is set to rule Friday on whether to strike down colonial-era laws which punish consensual same-sex relationships.

People still face up to 14 years in prison if convicted of gay sex in east African country

Kenya's High Court will rule Friday on a petition from gay rights groups to declare two laws that effectively criminalise homosexuality unconstitutional. (Simon Maina/AFP/Getty Images)

In Kenya, being gay can mean facing extortion, physical assaults, verbal abuse, denial of state services, forceful evictions, harassment, being disowned by family members, and jail.

But that could all begin to change Friday if a court rules to abolish laws that criminalize homosexual behavior.

The court case stems from a petition by the National Gay and Lesbian Human Rights Commission, and the Gay and Lesbian Coalition of Kenya. The groups argue that sections of the code are in breach of the constitution and deny basic rights by criminalizing consensual same-sex relations between adults.

Existence of these laws within the penal code validate stigma, discrimination and violence toward individuals who do not conform to society's expectations on gender identity, gender expression or sexual orientation, they argue.

Their removal would mean equality and inclusion of LGBTQ persons, said Mercy Njueh of the National Gay and Lesbian Human Rights Commission.

"It means having the law affirming our existence and validating that we, like all Kenyans, are protected under the law," she said.

Same-sex relationships are illegal in more than 70 countries, almost half of them in Africa, where homosexuality is broadly taboo and persecution is rife.

Kenya arrested 534 people for same-sex relationships between 2013 and 2017, the government said. If convicted, they face up to 14 years in prison. Kenya's high court began hearings on the law last year.

Kenyan laws, like in many other African countries that outlaw same sex relations, are vestiges of British colonial rule.

Same-sex relationships are currently punishable by up to 14 years in prison in Kenya. (Yasuyoshi Chiba/AFP/Getty Images)

And there is resistance to gay rights right at the top of the government.

Gay rights are "not of any major importance" in Kenya, President Uhuru Kenyatta told CNN in an interview last year. He told CNN that the laws are supported by "99 per cent" of the Kenyan people.

Dominant attitudes toward the LGBTQ community tend to be largely negative, said activist David Kuria.

"Within families there is a deep sense of shame when they learn one of their own is a gender or sexual minority," he said.

Negative perceptions are largely informed by ignorance about the causes of gender and sexual diversity, Kuria said.

"For many it is an acquired habit, which can therefore be dropped, or it is a sickness that needs to be cured. Either way, it is something that is wrong and needs to be corrected," he said.

Change has started 

Kenyan courts which many assumed to take a conservative view on issues of sexuality have so far ruled largely in favour of the petitions over LGTBQ rights.

In April 2015, Kenyan judges ordered a government agency to register a human rights group representing the country's gay people. The Kenyan constitution recognizes and protects the rights of minorities, the three judges of the High Court said in their ruling. The Non-Governmental Organization Co-ordination Board had refused to register the rights group on religious and moral grounds.

LGBTQ Kenyans attend an inter-faith service in Nairobi, the capital, days ahead of Friday's ruling. (Simon Maina/AFP/Getty Images)

In March, a Kenyan appeals court ruled unlawful the use of forced anal exams to test whether two men had gay sex.

In September, the court lifted a ban on Kenya's first film to premiere in the Cannes Film festival to allow limited showings, after censors banned the film over its gay content.

A positive ruling on Friday would help the community move to the next item on their agenda which is reconciliation with their own families, said Kuria.

The removal of the criminal tag will certainly help family reconciliations, he said.

"Many people who are sexual and gender minorities, whose sexual orientation or transgender status is known, tend to have difficulties relating well within their families. Many are out rightly rejected or treated with stigma."

Same-sex relationships are still illegal in 70 countries, with nearly half of those in Africa. (Simon Maina/AFP/Getty Images)

In case of a negative ruling, the fact that the case was heard gave gays important visibility, said Njueh.

"It dismantled the myth that homosexuality is a western agenda since the petitioners are Kenyans and the support we have from the sexual and gender minorities, who have religiously been attending court hearings affirms our existence," she said.

"It also opens avenues for conversation around sexual and gender minorities."

With files from Reuters