Kenya High Court Declines to Decriminalize Gay Sex

Court ruling on gay sex

Following a petition filed by gay activists in 2016, the High Court has today delivered a ruling on whether to strike out or uphold a law banning homosexuality in Kenya.

A three bench judge at the High court with Judges Chacha Mwita, Roselyne Aburili and John Mativo on board has unanimously declined on the decision to decriminalize consensual same-sex relations.

According to the High court judges, the penal code must align with the spirit of the constitution and Petitioners failed to prove the LGBT community is being discriminated against because the penal code doesn’t specifically name LGBT people.

“The Court holds that the impugned provisions of the Penal Code are not vague and disclose an offense. The petitioners have failed to prove that the provisions are discriminatory. There is no evidence to show that the petitioners were discriminated and their rights violated as they sought healthcare,” Mwita said.

Gay and Lesbian Coalition of Kenya (GALCK), the National Gay and Lesbian Human Rights Commission (NGLHRC) and Nyanza Rift Valley and Western Kenya Network (NYARWEK), filed petitions with their partners at the high court to repeal parts of the Penal Code in 2016. These petitions have inspired the #Repeal162 movement seen widely on social media since the end of 2018.

According to the petitions the Penal Code in sections 162(a) and (c) and 165 criminalizes consensual sexual conduct between two adults of the same sex which is a violation of rights granted to all Kenyans in Chapter Four of the 2010 Constitution Penal Code. These rights include: “the right to privacy, dignity, health, equality and non-discrimination and freedom and security of the person.”

The petitioners’ case argues that the right to privacy means consenting adults should be free to engage in consensual sex in private without external extrusion or danger of arrest.

Comments