Nairobi, Kenya — Kenya’s High Court on Friday upheld laws that criminalize gay sex, declining to join the handful of nations that have recently abolished a prohibition imposed by Britain during the colonial era.
The unanimous ruling by a three-judge panel of the court, announced in a courtroom packed with activists who wanted to see the laws overturned, keeps Kenya aligned with most of Africa. Anti-gay laws and conservative cultural mores remain prevalent across most of the continent. In addition to the threat of prosecution, discrimination and violence against lesbian, gay, bisexual and transgender people are common.
“A sad day for the rule of law and human rights,” said Eric Gitari, a co-founder of the National Gay and Lesbian Human Rights Commission, a Kenyan civil rights group, who was one of the petitioners in the case. He said he and others would appeal the ruling.
Téa Braun, director of the Human Dignity Trust, an international gay rights advocacy group, noted in a statement that Kenya’s constitution guarantees human dignity and freedom from discrimination.
The Kenyan ruling came on the same day, however, that Taiwan had its first same-sex weddings, which were legalized last week by the legislature.
More than 70 countries criminalize gay sex, most of them Muslim countries or former British colonies, according to advocacy groups.
In the 19th century, British colonial rulers — far more than their counterparts from other European countries — outlawed same-sex relations in dozens of colonies on multiple continents. After gaining independence, most of those nations kept the bans in place, often using a version of the Victorian language the British had left behind.
At a meeting last year of Commonwealth heads of state, Prime Minister Theresa May said Britain regretted that history, and she urged other nations to change their laws. Britain did not repeal its own law against homosexual acts in England and Wales until 1967, with similar laws repealed later in Scotland and Northern Ireland. In the United States, gay sex was illegal in 13 states until a Supreme Court ruling in 2003.
The highest courts in three nations that were once part of the British Empire have recently struck down such laws: Belize in 2016, Trinidad and Tobago in April 2017 and India last September. A court case in Botswana is pending.
But other former British colonies, particularly Uganda, have become more harsh in pursuing discrimination and punishment for gay sex.
The sections of Kenya’s Penal Code upheld by the ruling on Friday make it a felony to have “carnal knowledge of any person against the order of nature” or to commit “gross indecency.” The maximum sentence for various offenses range from five to 21 years in prison.
The “carnal knowledge” section covers anal and oral intercourse, and in theory applies regardless of the gender of the people involved. Gay rights advocates say that it is used primarily against gay men. “Gross indecency” applies specifically to acts between men.
The justices ruled that the laws were not discriminatory, and they rejected an argument by the plaintiffs that the statutes discouraged people from seeking treatment for H.I.V., the virus that causes AIDS.
Anti-gay views are strongly held by many Kenyans. Cursing and shaking his head, Raphael Kimeu, 56, a waiter at a Nairobi restaurant, said that tolerating homosexuality “is tantamount to showing disrespect to the same God who created us.”
Yvette Cheptoo, 18, a student in Nairobi, said she thought the ruling would have little effect on how gay people are viewed. “The discrimination will still be there because being homosexual in our African traditions is unacceptable,” she said. “Most churches and religions in Africa are against it.”
But she said the rights of all people should be recognized, no matter what their sexual orientation or gender identity, reflecting the same kind of generational divide in attitudes seen in many parts of the world.
“Since these are our friends and loved ones, I’d like to see them enjoy equal rights just like any other Kenyan,” she said, adding that she considers Kenya a country that embraces equality for all.
A coalition of Kenyan L.G.B.T. activists that had been spearheading the suit to overturn the laws, along with local lawyers, argued that the Kenyan Constitution guarantees that the “state shall not discriminate directly or indirectly against any person on any ground,” including sex.
But the advocates contend that the state and some Kenyans have engaged in systematic discrimination, stigma and violence against gay people.
David Kuria, a human rights researcher who was among the petitioners, said he had wanted the judges to strike down the laws so that “L.G.B.T. persons will be able to live without fear of violence, or the fear of being fired from their workplace.”
Reuben Kyama reported from Nairobi, and Richard Pérez-Peña from London.
by Reuben Kyama and Richard Pérez-Peña
Source – The New York Times
