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Same-sex sexual behavior:

Kenyan court issues ruling that
retains laws existing laws that
criminalize gay sex.

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Kenya is a country with a border on the East coast of Africa. It is approximately centered on the African Continent in a North-South direction. It shares borders with Ethiopia, Somalia, Sudan, Tanzania, and Uganda. Kenya has a population of about 50 million people. Thus it probably has a LGBT population numbering in the millions.

About 38% of Kenya adults are Protestant Christian, 28% are Roman Catholics, 25% follow indigenous religions, and 6% are Muslims. Many religious groups in the country have opposed any change to the existing laws banning gay sex.

Like many former colonies of the UK, Kenya still has colonial era laws on the books that criminalize gay sex. They are Articles 162, 163 and 165. Individuals found guilty face prison terms of 5 to 14 years. Needless to say, same-sex marriages are not recognized. Discrimination against LGBT individuals is legal and widespread.

A lawsuit to declare the three Articles unconstitutional was launched by some gay groups in 2016. They based their case on the argument that the laws contravene the 2010 Constitution and encourage discrimination against the LGBT community. Supporters of the lawsuit had hoped that the court would scrap the laws, and that this would influence other nations in Africa to do the same.

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Comments before the Court issued its ruling:

Frank Mugisha, an LGBT activist based in neighboring Uganda said:

"Everyone all over Africa is paying attention. Whatever happens in Kenya will have a direct impact on us all." 1

Lelei Cheruto, of the National Gay and Lesbian Human Rights Commission (NGLHRC) in Kenya said:

"Our constitution is very progressive but there is legislation in place that is not. Repealing the laws would mean equal recognition ... with rights such as the freedom to exist, to associate, to be free from discrimination. All these rights will finally be recognized for queer people in Kenya." 1

Mombo Ngua, a Nairobi activist, said:

"It is a challenge to be gay here because of society. You can be attacked whenever, wherever. There will be protests if we win." 1

The Kenya Christian Professionals Forum (KCPF) is a coalition of Catholic, Protestant and Evangelical churches. They oppose any change to the laws. The lead lawyer representing the Forum said that homosexuality was:

"... a sexual perversion that is damaging to the individual, the family and the society. When you look at African culture historically, homosexuality has never been tolerated. Many African languages do not even have a word for homosexuality. In Africa there is a strong sense of community and a society has the right to outlaw a behavior if it is abhorrent and immoral." 1

During a 2018 interview on CNN, Uhuru Kenyatta, the president of Kenya, said that gay rights were:

"... of no importance to the people of Kenya. This is not an issue of human rights, this is an issue of our own base as a culture, as a people regardless of which community you come from." 1

The Guardian newspaper stated that Kenya arrested 534 people for engaging in same-sex relationships between 2013 and 2017 -- about nine a month. 1

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2019-MAY-24: The court issued its ruling:

The Kenyan high court handed down their unanimous ruling on 2019-MAY-24.

A bench of three Justices told a packed courtroom in Nairobi that they had not seen any indication of extensive discrimination caused by the laws that would justify their removal. Also, the Justices said that the laws were constitutional because they represented the values and views of the general population. They also said that a public opinion poll in 2013 found that 90% of the population in Kenya did not think society should accept homosexuality. 1

Justice Roselyne Aburili said that: "Courts should be loath to fly in the face of public opinion."

She also said that same-sex couples living together would be violating the Constitution, and that there is no scientific proof that LGBT people were "... born that way." Her latter comment conflicts with a growing consensus among human sexuality researchers that homosexual orientation is caused by epigentics: a layer on top of a person's DNA that turns individual genes on and off. This layer is established long before birth and remains fixed after birth. An epigenetic test on a person's saliva has been developed that is 83% accurate at identifying gay males.

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Reactions by individuals present at the ruling:

The Nairobi-based National Gay & Lesbian Human Rights Commission (NGLHRC) is the main petitioner in the case. After the Court's decision was announced, the Commission's lawyer, Paul Muite, said that they would appeal the case. He said:

"These old colonial laws lead to the LGBT community suffering violence, blackmail, harassment and torture. They devastate people’s lives and have no place in a democratic Kenyan society.

Stonewall UK described the ruling as "... crushing news."

Director Téa Braun of Human Dignity Trust, a group that specializes in fighting anti-LGBT prejudice in courts, said it was a huge setback for human rights in Kenya. She said:

"All Kenyan citizens are guaranteed human dignity, equality before the law and freedom from discrimination under the 2010 constitution. 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 [worldwide] where citizens are made ‘criminals’ simply because of their sexual orientation or gender identity."

She noted in a statement that Kenya’s constitution guarantees human dignity and freedom from discrimination. She said:

"Yet in handing down this disappointing judgment, the court has ruled that a certain sector of society is undeserving of those rights." 2,3

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Jason Burke, "Kenya to rule on gay rights as African neighbours look on," The Guardian, 2019-FEB-21, at: https://www.theguardian.com/
  2. "Kenya court upholds ban on gay sex in major setback for activists," The Guardian, 2019-MAY-24, at: https://www.theguardian.com/
  3. Reuben Kyama & Richard Pérez-Peña, "Kenya’s High Court Upholds a Ban on Gay Sex," The New York Times, 2019-MAY-24, at: https://www.nytimes.com/

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How you may have arrived here:

Home > "Hot" religious topics > Homosexuality & Bisexuality > LGBT laws > here

Home > "Religious laws > LGBT laws > here

Home > Religious hatred & conflict > LGBT laws > here

Copyright © 2019 by Ontario Consultants on Religious Tolerance
Original posting: 2019-JUN-11
Author: B.A. Robinson
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