On Friday*, Kenya’s High Court will decide whether to strike down two sections of its colonial-era penal code, which criminalize gay sex. LGBT+ activists at the heart of the legal battle say the ruling could open up a “world of opportunities for queer people in Kenya.”
It will be three years this April that queer activist Eric Gitari first filed a discrimination lawsuit challenging the constitutional validity of sections 162 (a) and (c), 163, and 165 of Kenya’s penal code, which were introduced in 1930 by the British Empire and criminalize sodomy, and make sexual acts “against the order of nature” punishable by 14 years’ imprisonment.
Gitari tells PinkNews it has been a “long-term, incremental litigation process” to get to this point.
The hearing comes after judges listened to submissions in October about the relevance of the Indian Supreme Court’s decision to overturn Section 377, a similar British colonial law banning gay sex.
The Kenyan High Court’s decision will mark a pivotal moment for LGBT+ rights not only for the nearly 50 million people living in Kenya, but also across countries in east Africa.
Campaigners tell PinkNews that they expect a positive decision to have a domino effect, opening the doors for the legalization of same-sex sexual activity in nearby Uganda and South Sudan.
Gitari, who filed the decriminalization petition on behalf of the National Gay and Lesbian Human Rights Commission (NGLHRC), a Nairobi-based non-governmental organization which he co-founded, has contrasting feelings about the hearing.
Speaking over the phone from Boston, USA, Gitari says that, on one hand, his group’s previous legal successes are “indicative of the possibility and high probability of success that the law will be struck down.” (Last year, the NGLHRC scored a win in a separate case when the Court of Appeal of Kenya ruled that forced anal examinations on people accused of same-sex relations is unconstitutional.)
NGLHRC’s office in Nairobi, Kenya.
On the other hand, Gitari is treating the ruling with “cautious optimism” because, he says, of “ongoing political intimidation upon the judiciary by the executive branch of government.”
A number of leading political figures in Kenya have spoken out against LGBT+ rights, with President Uhuru Kenyatta claiming in an interview with CNN in April 2018 that LGBT+ rights are “of no importance” to citizens of the country.
“This case could have been thrown out a long time ago,” says Gitari, “or delayed on technicalities, but there is a sense of resolve, even though it has taken years.”
Gitari, though, is not alone in his efforts. In January 2018, the NGLHRC’s case—titledEric Gitari v Attorney General & another—was consolidated with another petition, filed in June 2016, which also called for the decriminalization of consensual gay sex in private.
Altogether, four human rights group are petitioning in the current lawsuit: NGLHRC, the Gay And Lesbian Coalition Of Kenya (GALCK), Nyanza, Rift Valley and Western Kenya Network (NYARWEK) and the Kenya Human Rights Commission.
What is at stake here has wide-reaching consequences, the various groups say.
Across the continent, LGBT+ activists await the verdict, hoping if it goes their way it could open the floodgates for the repeal of similar legislation in other countries in Africa, where homosexuality is still illegal in 32 out of the continent’s 54 nations.
In particular, it is hoped that a positive ruling will have a strong impact on countries in the eastern African region, including Uganda, Tanzania, Rwanda, and South Sudan.
Brian Macharia, a communications officer at GALCK, another petitioner in the case, tells PinkNews: “A win will have a ripple effect on the east African community.”
Ken Abott, a program manager at NYARWEK, explains that there is a “strong connection business wise” between Kenya and neighboring Tanzania and Uganda.
“There is a lot of influence between the political leaders in the three states,” he adds.
“If Kenya decides to decriminalize same-sex conduct between adults then Uganda is likely to do the same, and Tanzania [too].”
The Kenyan hearing also comes in the wake of the southern African country of Angola decriminalizing homosexuality in January, when it scrapped the “vices against nature” provision in its colonial-era penal code.
Meanwhile, in Botswana, the High Court has set a March 14 date to hear a case seeking to decriminalize homosexuality in the country.
The campaign for LGBT+ equality in Kenya has been gaining momentum since the introduction of a new constitution in August 2010, which, activists argue, protects all citizens, regardless of their sexual orientation and gender identity. (However, LGBT+ people are not explicitly mentioned in the document.)
Last year’s ruling that anal testing is unconstitutional is one example of progression. Another came in 2015 when the Kenyan parliament rejected a bill that proposed the death penalty for people convicted of gay sex.
Away from the political sphere, in cinemas, cafés and other communal spaces in Kenya, there is an indication that social views towards gay people have shifted notably in the years since, in 2011, a United Nations publication reported homosexuality is “largely considered to be taboo and repugnant to cultural values and morality.”
Mercy Njueh of NGLHRC, who says she is “hopeful” for Friday’s hearing.
In September 2018, the release of Wanuri Kahiu’s critically-acclaimed film Rafiki, portraying a love story between two young women, was met with sold-out screenings in Nairobi and favorable reviews in some Kenyan media.
Despite initially being banned by the Kenya Film Classification Board (KFCB), the High Court overturned the decision so the movie could be eligible for an Academy Award nomination. (It was ultimately snubbed as Kenya’s submission for best foreign film.)
One reviewer in the The Daily Nation, the highest circulated independent newspaper in Kenya, even criticized the movie for depicting blanket societal opposition towards homosexuality.
“That whole communities, with not a dissenting voice among them, would go out of their way to make the lives of queer individuals a living hell is just unreal,” wrote Nairobi-based reviewer Thomas Rajula, who otherwise largely commended the film in his write-up.
Although a ruling in their favor on Friday would be a triumph for Kenya’s LGBT+ community, campaigners say that it would also represent a step forward for human rights in the country.
Under current legislation, activists argue that any private sexual acts beyond penetrative vaginal sex between a man and a woman is illegal—including anal and oral sex, regardless of the gender of those involved.
Mercy Njueh, a communications assistant at NGLHRC, tells PinkNews: “Even heterosexual people, if the law was followed to the very end, would be persecuted.
“What we’re fighting for is not just about gender and sexual minorities. It’s about human rights. We are pushing for Kenyans, who are recognized by the constitution, to be allowed to enjoy their human rights, without having to fear.”
There is subdued expectation that Friday’s decision will go in their favor, but the campaigners who spoke to PinkNews are not naive of the influence of more conservative minds. They fully expect a ruling to strike down sections 162 and 165 to be appealed—and vis-à-vis, they, too, are ready to appeal if things don’t go their way.
For now, Njueh is “hopeful” for Friday’s ruling. “We have a very progressive bench… we hope the judges will choose to stand on the right side of history.”
To Macharia, a favorable outcome on Friday would give Kenya’s LGBT+ community a concrete, judicial sense of validity.
“It affirms queer identities, which means the quality of lives of queer people is boosted and promoted, so people can live happy, healthy lives, without having to be constantly looking over their shoulders,” he says.
Macharia, his voice breaking, adds: “It hails a new dawn for LGBTQ affirmation, it’s a celebration of diversity.”
“Gosh. I don’t even have the words. It’s a world of opportunities for queer people in Kenya.”
*On Friday February 22, judges at Kenya’s High Court delayed a decision on this case until May 24 2019.