Kenya’s gay High Court ruling “absurd”, says Human Rights Watch

As activists prepare to appeal, Human Rights Watch has slammed the Kenya High Court decision to uphold archaic laws criminalising consenting homosexual acts as “a step backward.”

On Friday, the court shocked the world when it rejected a petition to repeal the colonial-era laws, claiming that they are not discriminatory because they do not single out LGBT people.

The judges further stated that the petitioners failed to show that the ban is unconstitutional or a violation of their right to privacy and human dignity.

“Kenya’s High Court has relegated people in same-sex relationships in Kenya to second-class citizenship, based on the absurd claim that the penal code is not discriminatory,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “Rights cannot be trampled upon in the name of social disapproval. The Court of Appeal should revisit this ruling urgently.”

Kenya’s Penal Code is a holdover from its colonial era and like many former British colonies retains anti-buggery laws that make vague reference to “carnal knowledge against the order of nature” and “gross indecency.” Under the provisions, these acts are punishable with up to 14 years in prison.

George Barasa, a Kenyan LGBT activist desperately seeking asylum in South Africa, expressed his deep disappointment with the court’s decision, which effectively means that he cannot return home.

“It is not a surprise because Kenya is still not ready to accept gay people,” he told MambaOnline. “To say that the petitioners could not prove that gays are having their rights violated is blatant arrogance because the police, the medical and even the Kenyan judiciary and other social fraternities are aware [that they are].”

Human Rights Watch noted that the ruling flies in the face of several previous Kenyan court wins that have upheld LGBT people’s fundamental rights. In March, the Court of Appeal confirmed that the Non-Governmental Organisations Coordination Board must officially register the National Gay and Lesbian Human Rights Commission (NGLHRC) as an NGO.

In March 2018, the NGLHRC also won a case at the Court of Appeals challenging the use of forced anal examinations to determine the sexual orientation of men suspected of being gay.

Human Rights Watch further argued that Kenya’s failure to move forward on decriminalisation of same-sex relations “also violates its obligations under international law.”

Following Friday’s regressive ruling, the NGLHRC said that it and other LGBT groups would “continue to pursue redress through the courts and will be filing an Appeal in the Court of Appeal.”