•The desires of Kenyans are reflected in the Constitution and their views should not be ignored, the court rules.
•There is no scientific explanation that the LGBTQ persons were born that way - Judge Aburili
The gay community has suffered a major setback after the high court ruled that gay sex is against the values and the Kenyan law.
In a unanimous decision, a three-judge bench led by Justice Roselyne Aburili held that where the will of the people, as expressed in the Constitution, reflects the societal values in place.
“The desires of Kenyans are reflected in the Constitution and their views should not be ignored,” the court ruled.
The judges noted that no one is born as an LBTQI person as had been alleged by the petitioners who had challenged the constitutionality of sections 162 and 165 of the law.
“There is not scientific explanation that the LGBTQ persons were born that way. We are unable to agree with the petitioners that their rights have been violated on grounds of sexual orientation,” Judge Aburili noted.
The court maintained that marriage is between a man and a woman and changing that would be against the values and the will of the people of Kenya.
In the argument, the petitioners had claimed that they are not seeking to have same sex marriage but to have their fundamental rights upheld.
However, the judges Aburili, John Mativo and Chacha Mwita dismissed the argument saying decriminalising the sections would indirectly open the doors for unions among persons of the same sex and if allowed it would have a direct conflict with the constitution.
In their view, this would have a ripple effect which would lead to same sex people living together as couples.
“Such relationship whether in private or not formal or not will be in violation of the spirit of the constitution,” the court held.
The court also ruled that they cannot rely on other judgment issued in other countries where they decriminalised same sex relationships in their countries.
According to the court, every country is unique in its own way and a court cannot follow a precedent of a country just because they have legalised same sex relations.
They further dismissed the allegations that their rights to access health services have been infringed especially Stigma on the HIV Aids persons in their community.
It was the judge’s finding that Stigma is not exclusive to the gay community and everyone has a right to access health.
“No evidence to show that the petitioners were discriminated and their rights violated as they sought healthcare," The judges said.
Similarly, the court said that the petitioners did not give any evidence to show that they were arrested and charged in court with an offence that is not under our constitution as they alleged.
The judges said the impugned sections of the law that were being contested by the LGBTQ community do not offend their dignity to privacy.
Further, the court noted that the contested sections are clear and not ambiguous as claimed by the petitioners in the case.
“We find that the impugned section is not unconstitutional, accordingly the consolidated petitions have no merit, we hereby declined the relief sought and dismiss the consolidated petition,” the court ruled.
The court also ruled that the said impugned provisions of the Penal Code are not vague and disclose an offence.
However, Lawyer Paul Muite for the petitioners said that they were dissatisfied with the court decision and they intend to file an appeal at the Court of Appeal as soon as they get the proceedings.
The Attorney General together with religious leaders said they are ready to defend the case at the Court of Appeal.
Speaking after the ruling, Lawyer Harrison Kinyanjui said that they welcomed the bold ruling of the court which upholds the values of the Country.
“Time has come for us to stand for cultural values, we must then stand against the cultural invasion,” Kinyanjui said.