The court heard arguments on how India’s landmark ruling this year affected Kenya’s court case
Kenya’s High Court will rule on whether to repeal Section 162 of the Penal Code, which criminalizes gay sex, on 22 February 2019.
On Thursday (25 October), judges heard final arguments relating to India’s decriminalization before making the announcement.
Kenya’s National Gay and Lesbian Human Rights Commission (NGLHRC) launched the legal challenge early this year.
They argue the colonial-era law violates constitutional rights to privacy and dignity.
Under the 2010 Kenyan Constitution, they argue ‘all citizens in Kenya [are protected] regardless of their sexual orientation and gender identity.’
Colonial-era Section 162 of the Penal Code criminalizes ‘sexual acts against the order of nature.’ Those found guilty face up to 14 years in prison.
Furthermore, Section 165 refers to sexual activity between men as ‘gross indecency’ and can lead to five years imprisonment. The laws can apply to any sex that is not penis-vagina penetration.
Decriminalization dominoes?
Importantly, judges on Thursday heard arguments on how India’s historic decriminalization should be considered in the case.
The presiding judge in Nairobi insisted that the court would consider India’s landmark decision despite opposition from the attorney general.
On 6 September, India’s Supreme Court ruled elements of Section 377 of the Penal Code were unconstitutional. The similar colonial-era law criminalized all ‘carnal intercourse against the order of nature’.
Judges ruled it violated rights to privacy and enshrined LGBTI equality for an estimated 78 million LGBTI Indians.
On Thursday, the NGLHRC-led plaintiffs argued that human rights are universal and the challenges faced by LGBTI Indians are similar to those faced in Kenya.
The attorney general, however, argued it was wrong for India’s Supreme Court to rule that sexual orientation is inherent without sufficient proof, according to the NGLHRC on Twitter
LGBTI Life in Kenya
Kenya is one of 33 African states where same-sex activity is illegal. And, it remains a deeply homophobic and transphobic country.
The NGLHRC claims there has been more than 3,000 cases of murder, sexual assault, violence, blackmail, and extortion against LGBTI people since 2013.
There have been small victories, however. Most recently, a court decided to temporarily lift a ban on a film about a lesbian couple.
Rafiki was the first Kenyan film to screen at the Cannes Film Festival. But authorities banned it in Kenya because of its ‘lesbian content’.
The filmmaker took the matter to the courts with a judge deciding to temporarily lift the ban. Filmmakers had to add extra screenings of Rafiki to meet demand after every session sold out.
by Rik Glauert
Source – Gay Star News
