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December 14, 2018

Court rules forced anal testing illegal, violates right to privacy

Members of the anti-gay caucus chant slogans against the lesbian, gay, bisexual, and transgender (LGBT) community as they march along the streets in Kenya's capital Nairobi July 6, 2015. Photo/REUTERS
Members of the anti-gay caucus chant slogans against the lesbian, gay, bisexual, and transgender (LGBT) community as they march along the streets in Kenya's capital Nairobi July 6, 2015. Photo/REUTERS

The Court of Appeal has ruled that it’s illegal to compel men to undergo anal tests to determine whether they engaged in homosexual acts. In Kenya homosexuality is a crime.

The ruling is a victory for the LGBT community, however, same-sex sexual activity is punishable by 14 years in jail.

The court ruled on Thursday that orders by the High Court to have two men tested was unconstitutional and a violation of their human rights. The lower court ruling was overturned.

“The right to privacy, particularly not to have one’s privacy invaded by unlawful search of the person, is closely linked to the right to dignity. Those rights in our view extend to a person not being compelled to undergo a medical examination,” the judges said. The bench was comprised of judges Alnasir Visram, Wanjiru Karanja and Martha Koome.

In February 2016 Caleb Omar Idris and George Maina Njeri were arrested in Kwale on suspicion of having sex. An anal exam was ordered to obtain evidence. They were charged in a magistrates court.

They moved to the Mombasa High Court to contest using the examination results as evidence.

Judge Anyara Emukhule dismissed their application and allowed the test to proceed on grounds the procedure and examination were lawful and within the confines of the Constitution.

Anyara also said the accused did not contest the test and their lawyer had knowledge of the test.

However the duo moved to the Court of Appeal where they challenged the legality of anal examinations. They said that they were forcibly subjected to anal examination by police and doctors at Msambweni District hospital.

They said the manner in which the evidence had been collected from them evidence amounted to rape.

“I allow the appeal and set aside the High Court decision,” Judge Visram ruled on behalf of the court.

In January an NGO challenged the Penal Code Sections 162 and 165 that prohibit homosexual activity. It argued that consensual sex in private between consenting adults should not be criminalised. It says the prohibition violates the Constitutional right to privacy and is degrading. The case is ongoing.

Lobby group CitizenGo Africa in February warned Kenyan courts to stop ‘being used to legalise homosexuality’. Spokesperson Ann Kioko said ‘research shows’ Kenya is being used by gay activists to act as an entry point towards legalisation of LGBT.

Kioko said that while LGBT people want pose as to pose as special disadvantaged groups, that is not the case. Most Kenyans are opposed to gay sex

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