Kenya high court rules to maintain laws criminalising homosexuality

Activists vow not to give up after crushing court ruling for Africa’s LGBT+ community

Ugandan LGBT refugees in a protected section of Kakuma refugee camp in Kenya. They fled Uganda following the anti-gay laws enacted in 2014. Photograph: Sally Hayden

Ugandan LGBT refugees in a protected section of Kakuma refugee camp in Kenya. They fled Uganda following the anti-gay laws enacted in 2014. Photograph: Sally Hayden

 

A long-awaited high court ruling in Kenya dealt a crushing blow to LGBT+ East Africans, as judges announced that colonial-era legislation criminalising homosexuality was not inconsistent with the country’s constitution.

Hundreds of LGBT+ activists, lawyers and journalists showed up for the decision: so many that there was a squash to fit through the courtroom door, which led to a delay in starting and many having to wait outside.

Ahead of the ruling, #Repeal162 trended on Twitter, with Kenyan activists sharing safety tips for those going. Kenya Human Rights Commission’s Kanyali Mwikya told attendees to be aware they could be outed because of the presence of media; not to engage with anti-queer activists to minimise risk of violence; and to bring an extra change of clothes if they were planning on wearing something that might set them out from a crowd.

Knock-on effects

LGBT+ people across Africa were also following the ruling, which had already been delayed three months, aware that decriminalisation and a recognition of their rights could have knock-on effects on a continent where homosexuality is illegal in 32 of 54 countries.

“I have not been too excited about many things in my life like this,” tweeted Nigerian gay activist Asiwaju Bisi Alimi beforehand. Nigeria’s laws punish same-sex marriage with up to 14 years in prison.

LGBT+ Kenyans also posted support for each other online. “Meanwhile, I need a boyfriend no matter what the verdict,” one man said.

Three judges, Roselyn Aburili, Chacha Mwita and John Mativo, delivered Friday’s ruling, saying the current laws do not go against constitutional rights to dignity and privacy, accessing healthcare, and the right to a fair trial. The judges said the LGBT+ petitioners taking the case had not proven their rights had actually been violated.

Judges Aburili, Mwita, and Mativo also said the legislation that criminalises homosexual acts does not specify the sexual orientation of the person targeted, and could equally apply to a heterosexual person.

Key to the judgment was the high court judges saying they had no evidence from experts that LGBT+ people are born that way, and that, like other Kenyans, they have every right to enter into heterosexual relationships and marriages. That pronouncement led to awkward laughs in the courtroom.

Challenging

Judge Aburili closed, saying that repealing the legislation that criminalises homosexuality would be “opening the door for same-sex unions”, which could lead to unconstitutional same-sex marriages.

After the ruling, Nigerian activist Mr Alimi tweeted that the result was “challenging” but “we will not give up. Today, this judgment has given fire to our passion and has shown us what we can achieve if we try.”

Herbert, an LGBT refugee who fled to Kenya after the introduction of Uganda’s 2014 anti-gay law, called the ruling “a devastating development”. Messaging The Irish Times from outside the courtroom in Nairobi, he said everyone around him was “so disappointed”.

Among the cases cited by the petitioners was David Norris’s 1988 challenge against the Irish State, in which the European Court of Human Rights decided the criminalisation of certain homosexual acts between consenting adults violated the right to respect for private and family life, as enshrined in the European Convention on Human Rights.