Kenya court upholds ban on gay sex in major setback for campaigners

Judges at Kenya’s high court have rejected a bid to repeal colonial-era laws criminalising gay sex, in a major setback to LGBT campaigners across Africa.

A bench of three judges told a packed courtroom that they had not seen sufficient evidence of discrimination caused by the laws, which they said were constitutional because they represented the values and views of the country.

Justice Roselyne Aburili rejected last year’s precedent in India, which legalised gay sex between consenting adults, as well as a series of other judgments across the Commonwealth and elsewhere, and said Kenya should make its own laws to reflect its own culture.

In a statement that will outrage many, Aburili said that same sex couples living together would be violating the constitution and that there was no scientific proof that LGBT people were “born that way”.

“Courts should be loath to fly in the face of public opinion,” she added, amid chaotic scenes at the high court in Nairobi, where media, supporters and lawyers packed the narrow corridors on Friday.

The judgment has potential implications across the continent, where LGBT people face widespread discrimination.

The court had been due to deliver its ruling in February, but then postponed it until May. The case stems from a petition filed by gay activists in 2016 that argued that the laws contravene Kenya’s 2010 constitution and encourage discrimination.

“The progressive needs of the Kenyan constitution are different from those of other countries … [It] should be a mirror that reflects the national soul and articulates its values,” Aburili said.

Téa Braun, director of the Human Dignity Trust, a campaign group using litigation to fight anti-LGBT prejudice, called the decision “regressive”.

“This is a huge setback for human rights in Kenya. All Kenyan citizens are guaranteed human dignity, equality before the law and freedom from discrimination under the 2010 Constitution. Yet in handing down this disappointing judgment, the court has ruled that a certain sector of society is undeserving of those rights.

“The ruling sends a dangerous signal to the other 72 countries where citizens are made ‘criminals’ simply because of their sexual orientation or gender identity.”

Colonial-era laws in Kenya currently punish sexual acts deemed “unnatural” with up to 14 years in prison, and homosexuality is illegal in most countries on the continent. In several, gay people face life imprisonment or the death penalty.

Hate crimes against gay people – including physical and sexual assault, blackmail and extortion – are common, but most victims are too fearful to go to the police, rights groups say.

Kenya arrested 534 people for same-sex relationships between 2013 and 2017. According to petitioners against the law, there have been more than 1,500 attacks against LGBT Kenyans since 2014.

Activists had described the ruling in Nairobi as a watershed moment for LGBT equality in Africa. “This is about Kenya and Kenyan people but

will send a strong message to other African countries to promote, protect and fulfil the rights of queer people,” said Brian Macharia from the Gay and Lesbian Coalition of Kenya shortly before the decision was announced.

Reform of the law was opposed by the Kenya Christian Professionals Forum, a coalition of Catholic, Protestant and Evangelical churches.

Charles Kanjama, the lead lawyer representing the forum, has described homosexuality as “a sexual perversion that is damaging to the individual, the family and the society”.

A 2013 survey found that 90% of the population in Kenya did not think society should accept same-sex relationships. In several other African countries, levels of disapproval were even higher.

The court heard from expert witnesses who said there have long been established traditions of tolerance of same-sex relationships in Africa.

The campaign to repeal Section 162 received a major boost last year when India’s top court scrapped a law that punished gay sex with up to 10 years in jail in a historic verdict.

Campaigners say Kenya’s laws are used daily to discriminate against LGBT people, making it harder for them to get a job or promotion, rent housing or access health and education services.

In neighbouring Tanzania, authorities in Dar es Salaam, the biggest city, have launched a series of crackdowns on gay people in recent years. In the most recent the city’s governor called on citizens to identify gay people so they could be arrested, forcing hundreds of people into hiding.

However there has been progress elsewhere, including Angola, which decriminalised gay sex in January. In March, the high court in Botswana heard a case brought by campaigners challenging the constitutionality of a law punishing same-sex relations.

By Wakeup Africa 360 staff

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