Kenya is on the verge of making history as the second African country to decriminalise homosexuality. The High Court will on the 26th of April give the dates when they will make the rulings on the case where three Queer Rights NGO’s moved to court to challenge the constitutionality of sections of the penal code which criminalise homosexuality.
Between 2010 and early 2014, nearly 600 people have been prosecuted under section 162, which, apart from arrest, has laid the groundwork for discrimination, physical and emotional violence, blackmail and harassment. It’s on this basis that the National Gay and Lesbian Human Rights Commission went to court as co-petitioners to challenge the constitutionality of the impugned section based on the premise that they infringe on citizen’s right to dignity, privacy and non-discrimination which are protected by the constitution.
Represented by Senior Counsel Paul Muite, the 3-day hearing was an emotional roller coaster with the courtroom packed to the rafters with activists, religious leaders and regular queer Kenyans who were there in the hope of watching history being made. There was an optimistic mood all round as the case started with the crowd optimistic that the High Court would final make their existence legal and not the walking criminals that they felt like in their day-to-day lives. Even the mere fact that the case was being heard was unthinkable ten years back and perhaps the time had come for Kenya to recognize the humanity of the queer community- gay men to be specific.
Professor Lukoye Atwoli, the Dean of Moi University School of Medicine was the petitioners’ professional witness who gave his testimony, as a psychiatrist on the ‘normalcy of homosexuality, sexual orientation, identity and behavior. He remained resolute despite the vigorous cross-examination led by Charles Kanjama, representing the Kenya Christian Professionals Forum who were enjoined to the case as part of the defence. The Attorney General’s office took a back seat and let Kanjama take the lead and only spoke up thrice, briefly, when absolutely necessary. He pushed to prove that homosexuality was a mental illness and that its removal from the list of mental illnesses by the American Psychiatrists Association was sue to political pressure and not due to medical backing. He relied on older studies, religious doctrines and self-published papers to back his argument.
Day two of the hearing, however is when things heated up at the judges had to intervene at some points to silence the crowd which would erupt in murmurs and uproar based on some of the funny and inexcusably ludicrous defences, the AG’s office and Kanjama’s made in defence of keeping homosexuality illegal. When homophobia is challenged then it’s true lack of intellectual underpinnings is put on display for all to see.
Some of their claims included: Homosexuality is a victimless crime but victimless crimes still harm society like tax evasion, environmental pollution and deforestation; Sexual behavior has a public dimension to it- when a gay person doesn’t find a partner, he seeks to create or convert people to be their partners through grooming. They exhibit themselves to get partners; Gay people plan to recruit children, change people’s religion and the “Gay Game Plan” is to change society; Gay people have hundreds of sexual partners a year and thousands in their lifetimes; Homosexuality increases suicide rates and since we don’t want people to commit suicide, we shouldn’t legalise homosexuality; Homosexuality increases your likelihood of being a victim of sexual violence; Homosexuals have a life expectancy of up to 20 years less than their heterosexual peers and so legalizing it would be reducing the country’s life expectancy; There’s no proof that suppression of one’s sexuality causes harm and a comparison was made to being attracted to someone’s property but resisting the urge to steal. A comparison was also made to paedophiles having to resist the urge to sexually abuse children; There’s previously gay people who “came from the lifestyles and broke free from the chains of homosexuality”; Sex is for reproduction and if all the gay people convert all the other people in the world to being gay, then that would be the end of the world because no one would reproduce; African communities didn’t have words for homosexuality, meaning it didn’t exist. They interestingly added that the same African tribes imposed sanctions on and rejected homosexuality. So did it exist or not?
Paul Muite presented his case and offered solid rebuttals and the court crowd quietly(sometimes not too quietly) cheered each time he made his arguments. He pointed out that a lot of their arguments were ridiculous and not based on any intellectual or scientific bedrock. He then went through the bill of rights and the constitution with the aim of elucidating the basic and bare minimum rights everyone, including homosexuals enjoy and arguing that minority rights didn’t rely on popularity- that’s now how rights work. He also argued on the constitutional position that there is no state religion or culture and though everyone had the right to observe their religion and culture, they have no right to impose it on others. Their discomfort with someone else’s lifestyle is not a legal basis for making it illegal. Addressing the sentiment put forward that decriminalizing it would affect the whole society, he argued that no real argument had been presented and that orientation isn’t something acquired or taught. Is heterosexuality that fragile that exposure to homosexuality would ‘turn people gay?’ The petitioners also challenged the vagueness of “against the order of nature” which was open to interpretation which means that it was also open to and had been misused broadly at the discretion of law enforcement officials. They emphasized that there was no such thing as gay rights and they were not trying to introduce new rights but rather enforce existing rights and address the barriers to the enjoyment of fundamental rights.
In a rare but landmark win for the LGBTQ community, two weeks ago the Court of Appeal overturned a previous High Court ruling which had upheld the legality and admissibility of anal testing. Police, in February 2015, arrested two men in Kwale on suspicion that they had engaged in homosexual acts. A magistrate subsequently ordered forced anal and HIV testing to establish whether they had engaged in anal sex, which was carried out by medical professionals. They were later charged with ‘carnal knowledge against the order of nature and indecent acts between adults.’ The Court of appeal in it’s ruling declared that the forced testing was unconstitutional and the petitioner’s rights were violated. This is however just one of the many hurdles that the queer community faces in Kenya.
Sections 162 and 165 of the Kenyan penal code, homophobic relics enshrined in law, criminalise ‘sex against the order of nature’ and ‘acts of gross indecency between males’ and this provides the basis for the criminalization of homosexuality. This section of the penal code is similar and almost identical to Section 377 of India’s current and Australia’s recently repealed Penal Code -both former British colonies.
Everyone seemed to be in high spirits at the end of the case with the common sentiment being that they felt that the petitioners had relied on the law and the constitution and that the constitution was on their side. The judges were hard to read only interjecting when absolutely necessary, giving pertinent time to both parties to present their case and only notably intervened twice when the defence was overreaching in their cross-examination and when they tried to order the crowd to be quiet after they reacted to one of their absurd assertions.
Africa is looking at Kenya’s High Court decision because in many aspects, Kenya leads the way in precedent. Last year, the Botswana’s Court of Appeal cited Eric Gitari vs the NGO Coordination Board when it allowed Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo) to be registered. The ruling is also being used as legal authority in the case by Sexual Minorities Uganda (SMUG) who have gone to court to seek registration. The court will give the date of the final ruling on the 26th of April but one thing is for sure- equality is coming. It may not be today or tomorrow but it’s coming.