An expert witness will be called to support a case on decriminalising provisions of the penal code that make consensual same-sex relations illegal.
Senior counsel Paul Muite said on Thursday that a
psychiatrist will explain sexual orientation and why the government should not regulate matters of intimacy.
He addressed judges Chacha Mwita, Roselyn Aburili and John Mativo.
Muite said the psychiatrist and other experts will table reports to demonstrate biological and social conditions which explain sexual orientation.
Eric Gitari moved to court last year to decriminalise sections 162 and 165 of the penal code.
He said the sections are discriminatory and contravene provisions of the constitution including the right to equality, freedom from discrimination, human dignity, freedom, security and the right to privacy.
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".
Gitari
is the director of the National Gay and Lesbian Human Rights Commission. an NGO
established in April 2012.
He argues that laws criminalising relevant conducts as unnatural and grossly indecent are degrading.
The director also argues that the petition has nothing to do with same sex marriage, does not seek the legislation of same sex marriage and will not, if successful, have the effect of mandating or requiring Kenya to recognise same sex marriage.
Of the petition, Muite said: "[It]
only concerns the criminalisation and severe punishment under the criminal law, of a whole section of the Kenyan society, on account of the fundamental and innate characteristic of the sexual orientation."
The judges consolidated the case with another petition filed by John Mathenge and four others, who are seeking the same prayers.
Mathenge is represented by lawyer Willis Otieno.
The matter will be heard in February 22.