The Kenyan High Court today ruled that colonial-era laws criminalising same-sex relations are constitutional.
Currently the laws allow for up to fourteen years jail for anal sex and five years for non-penetrative sex.
The petitioners asked the court to declare the laws unconstitutional.
In rejecting the petition, Justice Roselyne Aburili dismissed judgments in favour of law reform in other Commonwealth countries. She said Kenya should make its own laws to reflect its own culture.
Justice Aburili also accused same sex couples living together of violating the constitution. She claimed there was no scientific proof that LGBT people were “born that way”.
Téa Braun, director of the Human Dignity Trust, described the decision as ‘regressive’.
“This is a huge setback for human rights in Kenya. All Kenyan citizens are guaranteed human dignity, equality before the law and freedom from discrimination under the 2010 Constitution,” he said.
“Yet in handing down this disappointing judgment, the court has ruled that a certain sector of society is undeserving of those rights.
“The ruling sends a dangerous signal to the other 72 countries where citizens are made ‘criminals’ simply because of their sexual orientation or gender identity.”
Despite laws against homosexuality, Kenya is a beacon of tolerance compared to other countries in the region.
Uganda just a few years ago considered the death penalty for homosexuality.
After a previously more tolerant attitude, Tanzania last year announced a crack-down on LGBTIQ communities.
LGBTIQ people from those and other neighbouring countries move to Kenya as the safest regional option.
History of anti LGBTIQ laws
The British introduced laws against ‘unnatural offences’ in the 1930s during their time as the colonial power in Kenya. Ironically anti LGBTIQ conservatives now often portray the laws as defending ‘African values’.
Sadly, over recent decades, the scope of the law extended to include the penalisation of lesbianism. The original British laws made no mention of lesbianism.
However, in recent years, Kenyan courts showed increase tolerance towards LGBTIQ causes.
In 2014 the High Court allowed a transgender group to register as an NGO, and in 2015 made a similar ruling for the National Gay and Lesbian Human Rights Commission.
Last year the court ruled to allow a one week screening of Rafiki, a Kenyan made lesbian film, in Nairobi. Without a local screening, producers of the film could not nominate it for an Academy Award.
Also, in 2018, the Mombasa Court of Appeal outlawed forced anal examination of people accused of same-sex activity.
President Uhuru Kenyatta repeatedly states that homosexuality is a ‘non-issue’ in Kenya, but his government takes no active steps against the LGBTIQ communities.
Opposition to reform comes mainly from religious groups and individual politicians.
Increased media commentary of LGBTIQ issues and visibility of LGBTIQ individuals led to hope for reform in the country.
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