LGBTQ rights: Milestones of queer community in 2019

Are rights of the sexual minority a human rights issue or a social and cultural issue?

In April 2018 during an interview with CNN reporter Christiane Amanpour, President Uhuru Kenyatta said LGBTQ rights are of no importance to the people of Kenya. 

Uhuru added that sexual minority rights were not an issue of human rights but an issue of society and culture.  

Almost a year later on May 24, a three-judge bench of the High Court dismissed a petition to decriminalise same-sex intimacy. 

The case had been filed in 2016. 

In Kenya, the Penal Code decriminalises same-sex relations and the penalty is a 14-year prison sentence. 

It says that any person who "has carnal knowledge against the order of nature" or permits a person to have "carnal knowledge against the order of nature" against them has committed a crime. 

Carnal knowledge 'against the order of nature' is any sexual activity between two or more persons that does not involve the penis penetrating the vagina.

This includes anal sex, oral sex, frottage (sexually rubbing and touching a clothed body part as a way of achieving sexual pleasure), thigh sex, handjobs and anilingus (sexual stimulation of the anus by the tongue or mouth). 

The Penal Code also makes it a crime for both same-sex and opposite-sex couples to participate in the sexual activities described above. 

It states that any person who commits an act of "gross indecency with another male person" has committed a crime.

‘Gross indecency’ is any sexual activity between two men that does not involve penetration whether committed in public or in private.

It only applies to sexual conduct between men and those found guilty under this law can be sentenced to a maximum of five years. 

Both laws were adopted from the British Empire when they first introduced laws against 'unnatural offences' and 'indecent practice among males' and copied them to its African colonies. 

When Kenya gained Independence, it retained them.   

In their ruling, the judges stated the laws do not violate in any way the rights of the queer community in Kenya. 

The ruling added that the petitioners failed to prove how the existence of these sections violated their right to health, dignity and privacy. 

The ruling was initially set for February 22 but was pushed to May 24 after the three-judge bench said the judgment was not ready. 

Justice Chacha Mwita who represented Justices Roselyne Aburili and John Mativo apologised for delaying the judgment. 

He said they were very busy and they were all on more than one bench, making it difficult to complete the judgment.

According to government records, Kenya arrested 534 people for same-sex relationships between 2013 and 2017. 

The National Gay and Lesbian Human Rights Commission, one of the petitioners against the law, has recorded more than 1,500 such attacks against the queer community Kenyans since 2014.

However, the community did secure a win this year after the Court of Appeal affirmed the High Court decision that directed the Non-Governmental Organisations Coordination Board to register the LGBT as an association.

In their ruling, Justices Philip Waki, Asike Makhandia and Martha Koome said all human beings should not be denied their fundamental rights because of how they choose to live their lives. 

The judges said Kenya is a diverse society and there is a need for tolerance and in any democratic society there will always be a marginalised group.

In dismissing the appeal by the NGO Board for lack of merit, the court noted the LGBT community has a right to freedom of association and there is nothing unlawful and criminal about the objectives of the proposed NGO.

The ruling followed a 2015 High Court ruling in favour of the queer community. The High Court argued the community had the same rights as everyone else to form an organisation for mutual support. 

The decision by the court was contested by the NGO coordination board who rejected an application to register a queer association saying the name of the organisation was unacceptable and couldn't be registered because of the Penal Code. 

In the main case filed by Eric Gitari, it sought to have the National Gay and Lesbian Human Rights Commission registered under the Non-Governmental Organisations Coordination Act, claiming it is within the rights of the gay community.

The community won another landmark case in May 2018 when a three-judge bench ruled in favour of two gay men arrested in 2015. 

The case was appealing to the cruel and degrading treatment of the two after their arrest.

The men were arrested in Kwale county on suspicion that they were gay and subjected to forced anal examinations and HIV testing under a magistrate’s order to determine if they had engaged in consensual sexual acts in private.

In a press release, the NGLHRC said, "The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit."

Out of 55 African countries, 38 have enacted laws that make it illegal to be gay.

In Somalia and South Sudan, it is punishable by death. In Nigeria, it carries a 14-year prison term and 30 years in Tanzania.

South Africa is the only African country that has legalised same-sex marriage. 

Last year, India's Supreme Court ruled that gay sex is no longer a criminal offence in the country. 

The ruling overturns a 2013 judgment that upheld a colonial-era law, known as section 377, under which gay sex is categorised as an 'unnatural offence'.

Edited by R.Wamochie