Religious organisations have opposed a case seeking to legalise sections of the law that make consensual sex between people of the same sex illegal.
Putting up a spirited fight before a three-judge bench, the organisations said decriminalising the sections of the Penal Code would be sneaking gay rights through “back door”.
The groups - from Christian and Muslim organisations urged the court to reject the case, adding the Constitution states in Article 45( 2 ) every adult has the right to marry a person of the opposite sex.
Kenya Christian Professionals Forum - consisting of the Kenya Conference of Catholic Bishops, National Council of Churches in Kenya and Evangelical Alliance of Kenya - said the same sex debate was largely discussed before the effecting of the 2010 Constitution and they had vowed to oppose the supreme law had it been considered.
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Similarly, the registered trustees of Jamia Masjid Ahle Sunneit Wal Jamaat and those of Umma Foundation were opposed to the bid seeking to quash Section 162 and 165 of the Penal Code.
“It is clear that Christians in Kenya, who make up about 80 per cent of the population, have unanimously condemned homosexuality,” argued lawyer Charles Kanjama said.
He tabled reports from the then Committee of Experts who dealt with the issues raised in court.
The suit has been filed by gay rights activist Eric Gitari and a lobby group who through lawyer Paul Muite, say the state has no business regulating matters of intimacy.
Muite told Justice Roselyn Aburili, Chacha Mwita and John Mativo the petition does not seek to enforce same sex marriage and does not have the effect of mandating or requiring Kenya to recognise same sex marriage.
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Senate deputy chief whip Irungu Kangata, through his lawyer Harrison Kinyanjui, said self-control is required of all human beings and “one should always restrain his or her impulse towards harmful behaviour”.
Ali Mohamed for the Muslim organisations, urged the court to look at the historical aspects leading to the implementing of the Constitution.
He said sexual orientation is not a protected right.
The Attorney General on February 23 opposed decriminalising consensual gay sex involving adults in private. The AG argued declaring Penal Code Sections 162 and 165 unconstitutional would allow unnatural offences between people of the same gender. And that could lead them to have a legitimate expectation of entering into same-sex marriage, he said. Same-sex marriages would violate Constitution Article 45, which says, “Every adult has the right to marry a person of the opposite sex, based on free consent of the parties.”
Through lawyer Jennifer Gitiri, the AG said the Constitution’s preamble acknowledges the supremacy of “Almighty God of all creation”.