Kenya’s high court upholds ban on same-sex relations

Tears flowed freely in a high courtroom in Kenya on Friday after a case seeking to overturn a law criminalising same-sex relationships was dismissed.

Presiding judge Roselyne Aburili said, “The petitions had no merit.” She said that decriminalizing same-sex relations contradicts constitutional values and the customs of Kenyan people.

Kenya has continued to hold on to a colonial-era law that bans gay sex. Kenya’s LGBTQ community petitioned the court seeking the abolishment of sections 162 and 165 of the Kenyan penal code, which forbids homosexual behaviour and prescribes a jail sentence of up to 14 years for those found guilty. LGBTQ people argued that the laws stand in stark breach of the assurance of protection from discrimination and the right to human dignity and privacy for all that is prescribed in the country’s constitution.

“We hereby decline the relief sought [by the LGBTQ group]. Having considered the arguments on both sides, the precedence, the constitution and the law, we’re not satisfied that the petitioners’ [bid] is sustainable,” said Aburili on behalf of a panel of three judges.

In a ruling that lasted almost two hours and quoted both international case law and national provisions protecting the family, culture and religion, the judges stated that the contested provisions do not target a specific group of people, but rather “any person”, and therefore cannot be considered discriminatory. Furthermore, the judges ruled that Sections 162 and Sections 165 do not violate the right to dignity or privacy of LGBTQ (lesbian, gay, bisexual, transgender or queer) individuals.

The fight is not over

Paul Muite, the lawyer for the National Gay and Lesbian Human Rights Commission (NGLHRC), said the organisation was going to appeal the ruling. “I am under instructions to apply for copies of the judgment to enable us [to] prepare for an appeal because we’re not in agreement with the decision of the court,” he told the panel of judges.

Ultimately, the petition to declare these colonial-era laws unconstitutional was dismissed on the grounds that decriminalising same-sex sex “would contradict the provisions of article 45 sub-article 2”, which defines marriage as between persons of the opposite sex and “would indirectly open the door to same-sex unions” which “would be against values of the constitution”.

After the ruling, a group of people in the courtroom cheered. Many came to hear the ruling in person from all around Kenya and the world. They later stood outside the court singing religious songs in praise of the ruling and held placards that read, “God intended marriage to be between a man and a woman.”

Charles Kanjama, the lawyer for the Kenya Christian professional forum, said: “We are happy that the courts have not been misused to try and introduce laws that (the) majority of Kenyan people and their institutions are opposed to.”

NGLHRC Executive Director Njeri Gateru commented on the negative ruling, saying, “The continued existence of these long-outdated laws gives a green light for harassment and discrimination of LGBTQ people. The ruling issued today is a horrific reminder of this. It establishes once again that LGBTQ people in Kenya are not only second-class citizens, but even criminals, merely for loving whom we love. We are extremely disappointed with the ruling today, but it will not stop us from continuing our struggle for recognition, tolerance, and respect, because #WeAreAllKenyans and #LoveIsHuman.”

Jessica Stern, Executive Director of OutRight Action International, responded to the Kenyan decision with the following statement: “The argument of the High Court of Kenya is flawed. Dismissing a petition to decriminalize same-sex sexual activity because it may indirectly open the door to petitions for equal marriage fails to consider the case at hand in favor of an arbitrary future, which, frankly, is absurd. In doing so, the High Court has re-established, in the harshest terms that human rights for LGBTIQ people are conditional. This gives the green light for discrimination, harassment, and violence … We eagerly await the day LGBTIQ [lesbian, gay, bisexual, transgender, intersex or queer) Kenyans truly get their day in court. Eventually, LGBTIQ Kenyans will prevail.”