High Court rejects plea to make gay sex legal in Kenya

Friday May 24 2019

SAM KIPLAGAT
By SAM KIPLAGAT
More by this Author

The High Court on Friday declined to decriminalise sections of the Penal Code that make it illegal to have consensual same sex in Kenya.

Judges Roselyn Aburili, Chacha Mwita and John Mativo dismissed the case filed by Eric Gitari and a host of lesbian, gay, bisexual, transgender and intersex groups, which sought decriminalisation of sections 162 and 165 of the law.

The judges said that declaring the sections illegal would open the door to unions of persons of the same sex, creating a conflict with article 45(2) of the Constitution.

The article states that marriage is between a man and a woman.

VAGUENESS

The judges further said Kenyans expressed their views when promulgating the Constitution in 2010 and that those views were clearly expressed in Article 45(2).

“We are unable to agree with the petitioners that the views of Kenyans should be ignored where the will of the people is expressed in the Constitution,” they said.

They also dismissed the ground that the two sections are vague, stating that a statute is not rendered as such for lacking a definition.

They said the sections are clear and disclose offences that are known in law.

RIGHTS

On alleged violations of rights to privacy and dignity, as well as freedom of expression, the court said the petitioners needed to demonstrate clear transgressions against them.

The judges said the contentious sections of the law do not discriminate against any particular groups of persons or people of particular sexual orientations.

“It is our finding that the petitioners have not shown the basis upon which they were discriminated. Cases are determined by discharging the burden of proof and the person complaining must satisfy the burden by tabling clear violations,” the judges said.

They added that the petitioners did not give evidence that they were denied medical attention, raising general allegations instead.

“A party alleging violation must demonstrate what rights have been violated. It is not sufficient to allege in general terms. We are of the view that the impugned sections do not exclusively apply to the petitioners."

THE LAW

Petitioners wanted the court to quash sections 162 and 165 of the Penal Code.

The law states that a person contravening the sections, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Section 162 reads: “Any person who - (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.

Section 165 reads that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

ARGUMENTS

The petitioners argue that the State has no business regulating matters of intimacy; they told the judges that gay feelings are natural and that the State should not interfere with the private matters of two consenting adults.

It is their argument that the two sections are discriminatory and contravene various provisions of the Constitution such as the right to equality, freedom from discrimination, human dignity, freedom, security and privacy.

However, religious groups say such matters should be guided by the country’s values.

President Uhuru Kenyatta has said in the past that gay rights are a "non-issue" in Kenya, as same-sex relations are not an issue of human rights, but of "our own base as a culture”.

During a visit to Kenya in 2015, Barack Obama, the then US president, directly challenged Mr Kenyatta, on the need for equality for the LGBT (Lesbian, Gay, Bisexual, and Transgender) community, suggesting that “bad things happen” when countries do not accept their citizens’ right to be homosexual.

Mr Kenyatta bluntly shut down Mr Obama's discussion on gay rights terming it "a non-issue” and that Kenya is not keen on embracing homosexuality.