The High court has declined to repeal section 162 of the penal code.Judges Chacha Mwita, Roselyne Aburili and John Mativo made a unanimous decision to decline.

“None of the petitioners tendered evidence to prove denial of the rights to health on the basis of their orientation. Only general statements which do not meet the burden of proof.

“On right to non-discrimination, the Constitution only prohibits unfair discrimination. In this case, the language of section 162 targets “Any person” and not a particular group with a particular sexual orientation, as claimed by the petitions,” the judges ruled.

Read:Catholic Run Children’s Home Faulted for Covering up Child-Abuse for Over a Decade

“We therefore decline to issue the orders as sought by the petitioners. The phrase in Section 162 (a) and (c) of Kenya’s Constitution] is clear,” said the judges

The National gay and lesbian rights commission through Eric Gitari had filed a suit to declare section 162 and 165 of the penal code unconstitutional.

The two sections, Gitari said that contravened the right to privacy for those affected. The gay and Lesbian Coalition of Kenya (GALCK), the National gay and Lesbian Human Rights Commission (NGLHRC) and the Nyanza Rift Valley and Western Kenya Network (NYARWEK) are enjoined in the suit.

Section 162 prohibits a person who has carnal knowledge against the order of nature; or has carnal knowledge of an animal.

Read Also:KWS “Sex And The City” Post Sends Twitter Into A Frenzy

“Any person who has carnal knowledge … against the order of nature; or has carnal knowledge of an animal; or permits a male to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for 14 years.”

Email your news TIPS to news@kahawatungu.com or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu </s> 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. </s> Kenyans in Twitter made Netherlands Ambassador to Kenya Frans Makken take down a tweet expressing his disappointment in the refusal by the High Court to repeal Section 162 of the Penal Code decriminalizing gay sex.

In a tweet, the envoy said: ““Very disappointing: High Court of Kenya declines to repeal the 162 section of the penal code which criminalizes same sex conduct as this section is not deemed unconstitutional.”

Tweeps quickly descended on the ambassador with insults forcing him to delete the tweet.

Some noted that gayism was “Unkenyan” and those fighting to decriminalize the act are just going through a phase.

“But gay people are just playing victims. Just blowing a fanfare to demand sympathy.A thread…1. Have you been discriminated in any way based on your orientation? 2. Have you been required to state your sexual preferences anywhere in Kenya?” Apale posed.

“#Repeal162 is Full of foreigners. There are no actual Gays and Lesbians in Kenya because its UNKENYAN. This is a foreign campaign in our country. The few gathering momentum here are a result of peer pressure. I have been there before so I can STATE WITH CONFIDENCE,” Nduta said.

“To the LGBT community, you can appeal the decision to the Court of appeal and up to the Supreme. While at it, please accept the fact that homosexuality is a foreign concept in Kenya that might take eons to become morally acceptable,” Kimberly Sang wrote.

A three judge-bench of Justices Chacha Mwire, Roselyn Aburili and John Mativo while dismissing the case noted that it is important that cultural values are respected.

In their unanimuos decision that had the LGBTQ community jittery for the better part of Friday, Justice Aburili said, “Acknowledging cohabitation among people of the same sex (where they would ostensibly be able to have same-sex intercourse) would indirectly open the door for unions (marriages) of people of the same sex.”

Email your news TIPS to news@kahawatungu.com or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu </s> Kenya's High Court on Friday declined to decriminalize same-sex relations, which can carry a prison sentence of up to 14 years, a decision that came as a blow to the LGBT+ community in the East African nation.

Three judges unanimously upheld article 162 and 165 of Kenya's penal code.

"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," judge Chaca Mwita told the press.

The High Court judges said the two articles in question did not apply exclusively to the LGBT community and that anyone found in breach of the law in that regard could be punished.

The articles in question are a hangover from British colonial rule in Kenya and deem sodomy and same-sex acts a crime against nature.

The lawsuit was originally brought before Kenya's judiciary back in 2016 by pro-LGBT+ rights groups who argued the laws were dated, discriminatory, fueled homophobia and contradicted the constitution, which says all people are equal in the eyes of the law.

Article 162, which pertains to acts "against nature" can carry a sentence of up to 14 years in prison.

The ruling was originally slated to take place on Feb. 22 but was postponed last minute due to the unanticipated workload on the case, according to Mwita.

The complainants now have the option to bring the case to the Supreme Court, the highest rung of judicial power in Kenya. However, once there, the case could take years to conclude.

In 2018, Kenyan authorities banned the screening of the film "Rafiki," a lesbian romance film, and the country's president, Uhuru Kenyatta, has previously said gay rights were a "non-issue" in the country.

Some 28 of the 49 sub-Saharan nations criminalize homosexual relations. Gay people in countries like Sudan or northern Nigeria can even face the death penalty for their sexuality, although these punishments are rarely enforced.

Countries like Angola, Mozambique and Seychelles do not criminalize homosexuality while countries like Chad and Uganda have recently tried to strengthen laws against it. EFE-EPA </s> Several gay Kenyans have been prosecuted in the past few years

Kenya's High Court has ruled against campaigners seeking to overturn a law banning gay sex.

The judges rejected claims that the colonial-era law violated the new constitution, which guarantees equality, dignity and privacy.

The penal code criminalises "carnal knowledge against the order of nature" - widely understood to refer to anal intercourse between men.

Gay sex is punishable by up to 14 years in prison.

Kenya's National Gay And Lesbian Human Rights Commission says it has dealt with 15 prosecutions under the penal codes in 2018, with no convictions.

But it had argued for the law to be scrapped because it gives rise to a climate of homophobia.

In 2016, LGBT rights activists filed a case with Kenya's High Court saying that homosexual relations should be decriminalised. They argued that the state has no business regulating matters of intimacy.

The case wasn't heard until February 2018 and a verdict was initially expected in February 2019 - but delayed until Friday.

What did the judges say?
• "We find the impugned sections (of the penal code) are not unconstitutional. We hereby decline the relief sought and dismiss the consolidated petition," said presiding judge Roselyne Aburili.
• The constitution still outlaws same-sex marriage but allowing gay sex would "open the door for same sex unions."
• There was "no conclusive scientific proof that LGBTQ people are born that way" she added.

What has the reaction been?
• "The High Court of Kenya legitimizes homophobia by upholding a colonial culture of exclusion, discrimination and violence against minorities" - The Kenya Human Rights Commission.
• "We will appeal. We expect that the court of appeal will overturn this erroneous decision which in our view is very biased," said Eric Gitari, one of the petitioners.
• Catholic bishop Alfred Rotish welcomed the ruling. "We cannot be another Sodom and Gomorrah," he told Reuters news agency.

What's the gay scene like in Nairobi?

There are unofficial gay clubs and advertised events in Kenya's cities.

"The LGBT community in Kenya have created an amazing tribe and culture for themselves," says Brian Macharia, an activist for the Gay and Lesbian Coalition of Kenya.

"There is a ballroom scene, a drag scene - vibrant bisexual community, a lesbian scene. Young people are driving the community forward through social media."

Gay men also use dating apps - although visitors with international roaming do get a warning about the legal status when logging in while in Kenya.

The judges ruled that while they respected changes to laws banning gay sex in other countries, it was the court's duty to respect prevailing Kenyan values.

Many Christian and Muslim groups support the current law, and the Kenyan attorney-general had argued against decriminalisation.

Many African countries still enforce strict laws governing homosexuality, in most cases a legacy of laws imposed by the colonial rulers. </s> The Kenyan High Court today ruled that colonial-era laws criminalising same-sex relations are constitutional.

Currently the laws allow for up to fourteen years jail for anal sex and five years for non-penetrative sex.

The petitioners asked the court to declare the laws unconstitutional.

In rejecting the petition, Justice Roselyne Aburili dismissed judgments in favour of law reform in other Commonwealth countries. She said Kenya should make its own laws to reflect its own culture.

Justice Aburili also accused same sex couples living together of violating the constitution. She claimed there was no scientific proof that LGBT people were “born that way”.

Téa Braun, director of the Human Dignity Trust, described the decision as ‘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,” he said.

“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.”

Despite laws against homosexuality, Kenya is a beacon of tolerance compared to other countries in the region.

Uganda just a few years ago considered the death penalty for homosexuality.

After a previously more tolerant attitude, Tanzania last year announced a crack-down on LGBTIQ communities.

LGBTIQ people from those and other neighbouring countries move to Kenya as the safest regional option.

The British introduced laws against ‘unnatural offences’ in the 1930s during their time as the colonial power in Kenya. Ironically anti LGBTIQ conservatives now often portray the laws as defending ‘African values’.

Sadly, over recent decades, the scope of the law extended to include the penalisation of lesbianism. The original British laws made no mention of lesbianism.

However, in recent years, Kenyan courts showed increase tolerance towards LGBTIQ causes.

In 2014 the High Court allowed a transgender group to register as an NGO, and in 2015 made a similar ruling for the National Gay and Lesbian Human Rights Commission.

Last year the court ruled to allow a one week screening of Rafiki, a Kenyan made lesbian film, in Nairobi. Without a local screening, producers of the film could not nominate it for an Academy Award.

Also, in 2018, the Mombasa Court of Appeal outlawed forced anal examination of people accused of same-sex activity.

President Uhuru Kenyatta repeatedly states that homosexuality is a ‘non-issue’ in Kenya, but his government takes no active steps against the LGBTIQ communities.

Opposition to reform comes mainly from religious groups and individual politicians.

Increased media commentary of LGBTIQ issues and visibility of LGBTIQ individuals led to hope for reform in the country.

QN Magazine | For the latest lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) news in Australia, visit qnews.com.au. Check out our latest magazines or find us on Facebook, Twitter, Instagram and YouTube. </s> A Kenyan appeals court has struck down the use of forced anal testing in homosexuality cases. Rights activists are hailing the verdict as a key victory that could have a ripple effect in the region.

 

 The court of appeals in the coastal city of Mombasa ruled Thursday that the forced anal testing of suspected gay men is unlawful. The judges deemed the practice a violation of human rights.

Njeri Gateru, the acting director of Kenya's National Gay and Lesbian Human Rights Commission, which filed the case, describes her reaction.

“Excited, happy, affirmed mostly," she said. "We just honestly think that it’s about time that the dignity of LGBT people is preserved as it should be, as enshrined in the constitution.”

Homosexuality is illegal in Kenya, punishable by up to 14 years in prison. Authorities have routinely subjected men arrested under the law to anal examinations.

Thursday's verdict stems from a 2015 case. In 2015, Mombasa police obtained a court order to force two men to undergo anal exams and HIV testing at a local hospital. The two men had been arrested and charged with unnatural sex.

The National Gay and Lesbian Human Rights Commission challenged the court's decision on the grounds that anal exams are cruel, inhumane and degrading. The commission also argued that the exams were a breach of medical ethics, both in Kenya and internationally.

Neela Ghoshal is Senior Researcher in the LGBT Rights program at Human Rights Watch. She called Thursday’s ruling “historic.”

“The appeal has made it very clear that biases against someone’s sexual orientation cannot be a reason to subject them to this really quite medieval form of torture, and I think that there is a good chance that this ruling will serve as precedent in other countries as well," she said.

She says activists in Uganda plan to file a constitutional challenge against the use of anal exams, and predicts that activists will do the same in other African countries like where the exams have not been banned.

Homosexuality remains far from accepted in Kenya.

Dr. Ezekiel Mutua serves as the chief executive officer of the Kenya Film Classification Board. He’s more popularly known as the country’s morality cop.

“Gay people are human beings, and therefore to the extent that someone could be subjected to anal tests, I think that’s very wrong and that was a violation of their rights. I would actually support them in that regard, but that does not mean that homosexuality is right," he said.

In February, Kenya’s High Court began hearing of arguments in a potentially landmark case that seeks to repeal Section 162 of the colonial-era penal code. The plaintiffs argue that the state cannot criminalize consensual same-sex relations between adults. It is the first time that a Kenyan court has considered such an argument. </s> In a landmark decision, a panel of three High Court judges on Tuesday decriminalised sex between consenting adults in Botswana.The judges – Abednego Tafa, Michael Leburu and Jenifer Dube – ruled that Section 164 of the Constitution is unconstitutional and declared that homosexuality is legal in Botswana.

Striking down Section 164, the three judges found that the section was discriminatory to the gay community.

“Denying the applicant the right to sexual intercourse in the only way natural to him even though it is done to all is in our view discriminatory…any dissemination to the minority in a society is a discrimination to all,” the three judges said in their landmark judgement.

The case was brought before the High Court by an organisation whose identity the Court requested that it should not be made public.

The judgement was handed down a few weeks after a High Court in Kenya declined to decriminalise homosexuality in that country. </s> NAIROBI (Thomson Reuters Foundation) - In a rare win for gay rights campaigners in Kenya, its Court of Appeal on Thursday ruled that it is illegal to force people suspected of being homosexual to undergo anal examinations.

The landmark case was brought by the National Gay and Lesbian Human Rights Commission (NGLHRC) after two men were arrested in 2015 on suspicion of having gay sex, which is illegal in Kenya and punishable by 14 years in jail.

The men said they were subjected to forced anal examination by security personnel and a public hospital in Kenya’s coastal city of Mombasa to determine if they had engaged in anal sex and were homosexual. They were also forced to take HIV tests.

“The NGLHRC has long argued that the tests are a violation of rights to privacy and dignity and amount to torture,” said a statement from the charity, which represents the rights of sexual minorities in the conservative east African nation.

“The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit.”

Homosexuality is taboo across Africa and the persecution of gay people is rife. Sexual minorities are routinely abused, assaulted by mobs, raped by police or vigilantes, or enslaved by criminals, campaigners say.

The judgment ends a three-year legal battle by the NGLHRC to prove that the examinations violated the rights of Kenyan citizens. It originally lost the case in 2016 when Mombasa’s High Court ruled the anal tests as constitutional.

The charity then challenged the ruling in the Court of Appeal in Mombasa, which has now ruled in its favor - but many African countries such as Uganda, Zambia, Egypt and Cameroon still conduct forced anal examinations.

“The humiliation and pain caused by these useless anal examinations will follow our clients for the rest of their lives,” said NGLHRC’s head of legal affairs Njeri Gateru.

“However, we are emboldened to see our constitution at work, ensuring that all Kenyans have the right to dignity.”

The NGLHRC is also challenging a British colonial-era Penal Code which criminalizes gay sex. The court is expected to announce on April 26 the date that it will deliver its ruling.
The High Court of Kenya rules against a bid to strike down Section 162 and 165 of the Kenyan Penal Code, a sodomy law. The plaintiffs plan to appeal to the Court of Appeal.