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BLOW FOR LGBT COMMUNITY

Court declines to declare gay sex legal

In Summary

• The LGBT community has been dealt a major blow after the High Court declined to repeal sections 162 of the penal code which criminalises gay sex. 

• The community wanted the court to decriminalize consensual same sex but Judges Chacha Mwita, Roselyne Aburili and John Mativo in a unanimous decision declined.

LGBT activist in court, February 22, 2019.
LGBT activist in court, February 22, 2019.
Image: ANNETTE WAMBULWA

The LGBT community has been dealt a major blow after the High Court declined to repeal sections 162 of the penal code which criminalises gay sex.

The community wanted the court to decriminalize consensual same sex but Judges Chacha Mwita, Roselyne Aburili and John Mativo in a unanimous decision declined.

“The Court holds that the impugned provisions of the Penal Code are not vague and disclose an offence. The petitioners have failed to prove that the provisions are discriminatory. There is no evidence to show that the petitioners were discriminated and their rights violated as they sought healthcare," Mwita said.

 

The ruling had been postponed to today over challenges with the bench of judges.

Justice Chacha Mwita who addressed the court on Friday last week said the judges have had challenges in writing the ruling.

"You may not like the news I have today. We are still working. One of our colleagues is still on leave. We ask you to give us up to May," he said.

The challenges involve the huge volumes of files that were sent on hard copies instead of soft copies by the parties.

Mwita apologised on behalf of the three-judge bench. He said most of the judges were in other benches so getting them together has been a hard task.

He noted that the only time they can meet is from April.

On Monday, May 20 the Kenya National Commission on Human Rights asked the Nairobi Police Commander asking for extra security.

 

KNCHR head of complaints Kamanda Mucheke said the sensitive nature of the case required police to increase security. He cited the "emotive nature of this matter and the high public interest in the outcome."

The case was filed in 2016 by three organisations seeking to repeal Sections 162 and 165 of the colonial-era penal code, which criminalise sexual acts between persons of the same gender. 

Gay activists protesting against Uganda's anti-gay law outside the Ugandan Embassy in Nairobi
Gay activists protesting against Uganda's anti-gay law outside the Ugandan Embassy in Nairobi
Image: FILE

LBGTQI activists, including Eric Gitari and NYARWEK, sued the Attorney General arguing that the law is discriminatory and an invasion of privacy.

Members of the community referred to as Sexual Orientation, Gender Identity, and Gender Expression (SOGIE) are anxiously awaiting the ruling, hoping today will be a day to celebrate individual liberty, free expression and human rights.

On February 22,  the ruling was postponed to the disappointment of the community who had gone to court in the hundreds. Some came from overseas.

The three-judge bench said the judgment was not ready and gave the May 24 date when they hoped to have completed writing it.

Justice Chacha Mwita who represented Justices Roselyne Aburili and John Mativo apologised for delaying the judgement. He said they were very busy and they were all in more than one bench, making it difficult to complete the judgement.

The law currently states that a person who has sexual intercourse with another of the same sex whether in public or in private is guilty of a felony and is liable to imprisonment for as long as 14 years.

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