Kenya’s High Court has refused to strike down colonial-era laws that criminalize homosexual acts, setting itself in opposition to a growing global trend by courts and governments to repeal such laws.
Human-rights groups had challenged Kenya’s anti-gay laws, calling them a violation of constitutional rights, including the right to privacy and the right to human dignity. But in a much-anticipated judgment on Friday, the Kenyan court rejected their challenge.
Several other African nations – Mozambique, Angola and Seychelles – have recently decriminalized homosexual activity, and India’s courts issued a similar ruling last year. This month, Taiwan became the first Asian country to legalize same-sex marriage, and a majority of judges on Brazil’s top court said they would outlaw discrimination based on sexuality.
East African countries such as Kenya, however, have refused to end the criminalization of homosexuality. Conservative religious groups have huge influence in politics and culture in all of the East African countries, and discrimination against gays and lesbians has been common. Last year, Kenya’s film board banned a movie about a same-sex relationship, although the ban was briefly overturned to allow a one-week screening of the film.
The groups that launched the legal challenge against the anti-gay laws said they plan to appeal Friday’s court judgment to a higher court.
In upholding the criminalization of homosexual acts, a three-judge panel of the Kenyan High Court said it could not exclude “our cultural values and principles.” It also alleged that decriminalization could “open the door” to same-sex marriages. And it said there was no scientific evidence that gays and lesbians are “born that way.”
Most of the country’s politicians have been hostile to gay rights. Kenya’s penal code allows prison sentences of up to 14 years for homosexual acts. President Uhuru Kenyatta last year dismissed the issue as “not of any major importance” and insisted that the anti-gay laws are supported by “99 per cent” of the population.
Irungu Kang’ata, a Kenyan senator who has led public demonstrations against gay rights, applauded the court ruling on Friday. “The country is still conservative and we are going to remain that way,” he told Kenyan media.
An organization of Christian church groups in Kenya has been among the leaders in fighting against the court challenge of anti-homosexual laws.
Despite the recent decisions to decriminalize homosexuality in several African countries, and a scheduled court ruling in Botswana next month that could do the same, criminal laws against same-sex relationships still exist in 33 of the 54 countries on the African continent. Homosexuality can be punished with the death penalty in Mauritania, Sudan and northern Nigeria, under Islamic sharia law, and gay men have been executed in southern Somalia by al-Shabaab, an Islamist militia organization.
International rights groups responded to the Kenyan court decision with dismay. “This is a huge setback for human rights in Kenya,” said Téa Braun, director of the Human Dignity Trust, an international legal charity.
“The ruling sends a dangerous signal to the other 72 countries, 35 of them in the Commonwealth, where citizens are made ‘criminals’ simply because of their sexual orientation or gender identity,” Ms. Braun said in a statement on Friday after attending the court judgment in Nairobi.
“We hope that Kenya’s appeal courts will see fit to reverse this regressive decision in due course.”
Kenya’s penal code, adopting British colonial-era laws, criminalizes anyone who has “carnal knowledge … against the order of nature.” One of the grounds for the legal challenge was that the law was too vague to be constitutional. But the judges, in their ruling, denied that the law was excessively vague or ambiguous.
Although convictions under the anti-gay laws are rare, a Kenyan human-rights group said it recorded 15 prosecutions under the laws last year. Activists argue that the laws fuel an atmosphere of homophobia and violence. Many members of the LGBT community are assaulted, fired from their jobs or evicted from their homes, and most of the assaults are never reported because the police are unsympathetic, the activists say.
There have been some rulings in favour of gay rights in recent years, however. Last year, the Kenyan High Court banned the police practice of using forced anal exams to test whether men had been having same-sex relations, and a court allowed the domestic screening of Kenyan lesbian-romance film Rafiki for seven days after it won international acclaim.