Skip to main content

Members of the public fill the courtroom as the High Court in Nairobi begins hearing arguments in a case challenging parts of the penal code seen as targeting the lesbian, gay, bisexual and transgender communities.

The Associated Press

Extortion, physical assaults, verbal abuse, denial of state services, forceful evictions, harassment, being disowned by family members.

These and many other challenges may begin to fade away for the Kenyan gay community if a court rules Friday in their favour to abolish laws that criminalize homosexual behaviour.

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.

Story continues below advertisement

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 means equality, 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.

In Kenya, people convicted of gay sex face up to 14 years in prison. Many countries across Africa have laws against homosexuality, and severe harassment and physical threats are common.

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

There is resistance to gay rights right at the top.

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.

Story continues below advertisement

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. While the broader community views the LGBTI persons as wrong, sinful and generally use similarly stigmatizing adjectives,” 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.

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.

Kenyan judges in April 2015 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.

Story continues below advertisement

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 whose 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.”

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

Story continues below advertisement

“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.”

Report an error
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

Read our community guidelines here

Discussion loading ...

Cannabis pro newsletter