In a major victory for basic human rights, the Court of Appeals in Kenya has ruled that forcing men to undergo anal examinations for “evidence” of homosexuality is unlawful.
On Thursday, a five judge bench handed down a ruling in a case brought forward by the National Gay and Lesbian Human Rights Commission (NGLHRC) appealing the state’s cruel and degrading treatment of two Kenyan men while under arrest in 2015.
The men were arrested in Kwale county, on suspicion that they were gay. They were then 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 — a crime punishable with up to 14 years imprisonment in Kenya.
The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into the rectum, are widely accepted to have no medical merit. International Human rights groups, include NGLHRC, have also long argued that the tests are a violation of the rights to privacy and dignity and amount to torture. The Kenya Medical Association has previous condemned the examinations.
In July 2016, the Mombasa High Court ruled that the invasive procedures as well as the forced HIV tests were constitutional and could be used as evidence against the accused. The NGLHRC appealed and after a three year legal and public advocacy campaign to end the practice in Kenya, the Court of Appeals finally ruled in the men’s favor, stating that their rights had been violated.
“We cannot underscore the significance of this win,” said NGLHRC in a statement. “When we first lost the case in 2016, we were appalled that a High Court in Kenya could justify inflicting such harm on its own citizens. This judgement overturns that discriminatory ruling, upholding the value of the rights enshrined in our constitution.”
Head of Legal Affairs at NGLHRC, Njeri Gateru, added: “The humiliation and pain caused by these useless anal examinations will follow our clients for the rest of their lives. However, we are emboldened to see our constitution at work, ensuring that all Kenyans have the right to dignity.”
Edwin Sesange, an African LGBTI rights advocate, also welcomed the judgment and thanked the “judges for putting justice before the colonial and western imported hatred of gay Kenyans”. He further appealed for the Commonwealth meeting in London next month “to discuss the need to decriminalise homosexuality in the Commonwealth in order to avoid such ill and unlawful treatments of innocent gay people.”
Tunisia recently agreed to end forced anal exams in its country, but the practice continues in nations such as Egypt, Tanzania, Cameroon, Turkmenistan, Uganda and Zambia. In October 2017, the World Medical Association (WMA) said that these exams are unscientific and in violation of medical ethics. It called on national medical associations to prohibit their members from participating in the practice, and to educate doctors and health workers on the issue.
Homosexuality remains outlawed in Kenya, with penalties including five to 14 years in prison. In a separate High Court case, NGLHRC and other rights groups are seeking to repeal the sections of the Penal Code under which the two men were arrested and charged. The next scheduled court date for that case is April 26.