In a shocking travesty of justice, the Mombasa High Court has ruled that the Kenyan authorities can continue to force anal exams on men accused of homosexuality.
The court also found that forced HIV and Hepatitis B tests of men suspected of homosexual conduct are also constitutional.
The ruling allows the government to continue these abusive practices and to use the test results as “evidence” in criminal prosecutions for consensual same-sex conduct, said Kenya’s National Gay and Lesbian Human Rights Commission (NGLHRC) and Human Rights Watch.
Same-sex sex is illegal in Kenya, with penalties of between five to 14 years in prison.
“This ruling is a devastating precedent that has now heightened the risk and fear of similar anal testing on many lesbian, gay, bisexual, transgender, intersex and queer persons in Kenya,” said Eric Gitari, Executive Director of NGLHRC.
“Suspecting someone of being gay should not be grounds for stripping them of their dignity and their fundamental rights.”
The case was brought by two men who were subjected to forced anal exams, HIV tests, and Hepatitis B tests at Mombasa’s Madaraka Hospital in February 2015.
The ruling is a blow to the victims, who argued that the examinations they were forced to endure are a form of cruel, inhuman, and degrading treatment that can often amount to torture.
The court instead accepted the argument put forward by the government that the medical examinations were reasonable and were performed in accordance with the law.
The court also ruled that the two men consented to the examinations through the lawyer who represented them at the time.
The men, however, maintain that they had no idea what “medical examinations” they were meant to undergo until they arrived at the hospital, and that they signed consent forms only under duress while in police custody. They were reportedly taken to the hospital in handcuffs to have the tests conducted.
While forced anal exams are rare in Kenya, Human Rights Watch has documented victims of anal exams in other countries where the authorities have relied on the abusive tests to attempt to “prove” consensual homosexual conduct.
The exams usually involve doctors or other medical personnel inserting their fingers, and sometimes other objects, into the anus of the accused.
In other cases, men are ordered to strip naked and bend over or lie down with their feet in stirrups while doctors “visually” examine their anal regions.
Anal exams have been discredited by experts as being medically and scientifically useless and have been equated to torture by human rights groups. The practice is also in violation of international professional medical principles.
The UN Committee Against Torture has called on several countries, including Cameroon, Egypt, and Tunisia, to cease conducting forced anal exams.
The Kenyan case is the first case known to human rights activists in which victims anywhere in the world have attempted to use domestic courts to challenge the use of the exams.
The NGLHRC, which represented the petitioners in the constitutional challenge, has filed an appeal against the ruling.
“The ruling is a setback, but it does not change the Kenyan government’s obligations under international human rights law,” said Neela Ghoshal, senior researcher on LGBT rights at Human Rights Watch. “Kenyan authorities should abandon these abusive practices and, if domestic law permits them, the law should be changed.”