In what is being described as “a blow for human rights”, the Kenya high court on Friday ruled that laws targeting lesbian, gay, bisexual and transgender (LGBT) people do not breach the country’s Constitution.
The challenge to the constitutionality of section 162 of the Penal Code — which carries a maximum 14-year prison sentence for those convicted of same-sex relations — was brought before the court by Kenyan human rights activists.
The three-judge bench ruled that the laws do not in any way violate the rights of LGBT Kenyans.
The judgment follows a postponement of a ruling in February this year.
In its judgment, the court stated that the petitioners failed to prove how the existence of these sections violated their right to health, dignity and privacy.
Njeri Gateru, the executive director of Kenyan National Gay and Lesbian Human Rights Commission (NGLHRC) — and the main petitioner in the case — said: “NGLHRC has seen time and time again how 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.”
A Human Rights Watch report authored by Alok Gupta, titled This Alien Legacy — The Origins of “Sodomy” Laws in British Colonialism, found that Section 377 was “a model law” introduced by the British in 1861 and then exported to its other colonies.
The report argued that many of the countries that outlaw same-sex relations do so “because they once were British colonies”.
“They brought in the legislation … because they thought ‘native’ cultures did not punish ‘perverse’ sex enough. Section 377 was … a colonial attempt to set standards of behaviour, both to reform the colonised and to protect the colonisers against moral lapses. It was also the first colonial ‘sodomy law’ integrated into a penal code… Its influence stretched across Asia, the Pacific Islands and Africa – almost everywhere the British imperial flag flew.”
The list of African countries that inherited versions of this law is expansive: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia and Zimbabwe.
“Our Constitution, the supreme and homemade law of our land, should be respected and upheld as sacrosanct,” Gateru added. “The Court has missed an opportunity to help ensure a future free from the intrusion of the state in our private lives, and to turn the tide for the LGBT community here at home in Kenya, and on the wider African continent.”
Along with other activist groups, NGLHRC intends “to continue to pursue redress through the courts” and will be filing an appeal in the Court of Appeal.
Carl Collison the Other Foundation’s Rainbow Fellow at the Mail & Guardian.