LGBTQ rights in Kenya

Lesbian, gay, bisexual, and transgender (LGBT) people in Kenya face significant challenges not experienced by non-LGBTQ residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years' imprisonment, and any sexual practices (termed "gross indecency") are a felony under section 165 of the same statute, punishable by five years' imprisonment. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not recognise any relationships between persons of the same sex; same-sex marriage is banned under the Kenyan Constitution since 2010. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only.
Transgender people have historically suffered discrimination, and there are no statutory provisions relating to transgender rights. However, there have been a series of court rulings in favour of transgender rights, such as the right to change the names appearing on legal documents. It is currently unclear as to whether these rulings constitute substantive law on the issue of changing legal gender.
Kenyan society is highly conservative, and a large majority of people hold negative views of LGBT people. In 2023, Pew Research Center estimated that over 90% of Kenyans oppose same-sex marriage. Nevertheless, public support has slowly been growing and various organisations are working to protect and improve LGBT rights.
Expressions of homosexuality are illegal under Kenyan statutes and carry a maximum penalty of 14 years' imprisonment, or 21 years under certain aggravating circumstances. Sex acts between women are mentioned under the gender-neutral term "person" in Section 162 of the Penal Code and are enforced equally. On 28 November 2010, Prime Minister Raila Odinga called for women or men engaging in same-sex activity to be arrested.
The Kenyan Penal Code of 1930, as revised in 2006, provides as follows:
The Kenya Human Rights Commission reported in 2011 about how these statutes have indirect but very adverse effects on LGBTI persons, saying,
In a 2020–2021 report, the Nairobi-based National Gay and Lesbian Human Rights Commission reported incidents of police demanding bribes.
The Constitution of Kenya, which took effect 27 August 2010, does not expressly protect the rights of LGBTI persons because, according to the experts who drafted the constitution, a majority of Kenyans would have rejected the constitution in the referendum to adopt it.
Nevertheless, few argue that Kenya's statutes discriminating against LGBTI persons are unconstitutional and void because of the constitution's broad protection of civil and human rights. Peter Anaminyi, the national director of Feba Radio Kenya, predicted in June 2011 that within 18 months there would be a challenge to the constitutionality of the Kenya Penal Code.
Article 2 of the Constitution of Kenya provides, in paragraph (5) that "the general rules of international law shall form part of the law of Kenya" and, in paragraph (6), that "[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution". In paragraph (4), the constitution states, "[a]ny law, including customary law, that is inconsistent with [the] Constitution is void to the extent of the inconsistency, and any act or omission in contravention of [the] Constitution is invalid." A subsequent section of this article lists Kenya's obligations under international law and treaties concerning LGBTI rights. To the extent that any Kenyan law violates Kenya's voluntary or involuntary obligations under international law, the law is arguably void under Article 2.
Article 10(2)(b) of the Constitution of Kenya provides that, "The national values and principles of governance include ... human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised...." Concerning this provision, "Right there, there is a firm basis [for] one to argue against the violation of their [LGBTI persons'] dignity ... on the basis of their gender or sexual orientation. There is firm ground to contest for inclusion, non-discrimination and equality too".
Article 19 of the Constitution of Kenya provides that,
Article 20(3)(b) of the Constitution of Kenya requires courts, when applying a provision of the Bill of Rights, to "adopt the legal interpretation that most favours the enforcement of a right or fundamental freedom". Concerning this article, Makau Mutua, the chair of the Kenya Human Rights Commission and the dean at the University at Buffalo Law School, The State University of New York, says that "where a right is contested, the courts must take the most liberal interpretation of the law to avoid denying the right".
Article 24(1) of the Constitution of Kenya provides that, "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors...."
Article 27 of the Constitution of Kenya provides that,
Concerning this article, The Equal Rights Trust and the non-governmental Kenya Human Rights Commission said in 2012,
In a May 2012 submission to the United Nations Human Rights Committee, the government of Kenya agreed with this interpretation of Article 27(4).
Makau Mutua argues that the Kenya Penal Code is unconstitutional under this article. He said,
Article 28 of the Constitution of Kenya provides that, "Every person has inherent dignity and the right to have that dignity respected and protected." This article offers "fresh impetus to the rights of the LGBTI community".
Article 31 of the Constitution of Kenya provides that, "Every person has the right to privacy...." Privacy is a fundamental human right, enshrined in numerous international human rights instruments.
In 2013, the Cosmopolitan Affirming Church (CAC) opened in Nairobi, becoming the first openly LGBT church in the country. The church is considered to be a rare space where Kenya's LGBT community can escape hostility from society. In 2016, The Employment and Relations Court in the Kenyan town of Nyeri ordered the Anglican Church of Kenya to reinstate three priests who were suspended in 2015 after allegations surfaced that they were gay. The priests later sued Bishop Joseph Kagunda of the Mount Kenya West Diocese, and it was later agreed that they would settle the lawsuit through mediation. In December 2018, it was announced that the Anglican Church in Kenya had given each of the three priests individual compensations of KSh.6.8 million/=.
The High Court of Kenya heard a legal challenge against on 22 and 23 February 2018, filed by the Kenyan National Gay and Lesbian Rights Commission (NGLHRC) will argue that sections of the Kenyan Penal Code are in breach of the Constitution and deny basic rights to Kenyan citizens. The case, Eric Gitari v Attorney General & another (Petition no. 150 of 2016) filed in 2016, seeks to strike down sections Section 162 (a) and (c) and section 165 of the Penal Code (Cap 63) that criminalise consensual same sex relations between adults. Eric Gitari, executive director of NGLHRC—and the main petitioner—states that sections of the Penal Code are used to justify violence against LGBT persons in Kenya. The constitutional division of Kenya's High Court will hear submissions from both parties on 25 October on the relevance of the decision by the Supreme Court of India to legalise gay sex by overturning Section 377 to Kenya, given that both countries have shared the law—dating back to the days of British colonial rule—that criminalises "sexual acts against the order of nature". The High Court was expected to announce its ruling on 22 February 2019. On the scheduled date, however, it was announced that the ruling would be delayed until 24 May 2019. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. LGBT activists vowed to file an appeal in the Court of Appeal.
In a separate case, a Court of Appeal in Mombasa, Kenya, ruled on 22 March 2018, that conducting forced anal examinations on people who are accused of same-sex relations is unconstitutional. The ruling reversed a 2016 High Court decision that had upheld the Kenyan authorities' use of forced anal exams to attempt to provide evidence of homosexual conduct. The National Gay and Lesbian Human Rights Commission (NGLHRC), a nongovernmental organisation based in Nairobi, filed a constitutional challenge after police arrested two men in Kwale County in February 2015 on charges of homosexuality, and subjected them to forced anal exams, HIV tests, and hepatitis B tests at Mombasa's Madaraka Hospital. Following this decision, Empowering Marginalized Communities (EMAC), a non governmental organization based in Machakos county prosecuted a case that involved two members of the LGBT community who were allegedly caught having sex in Kakuyuni area of Kangundo sub-county. The two men were taken for anal examination at the Kangundo Level 4 hospital. This was contested at the magistrate court of Kangundo and thus the anal examination was halted.
Inspired by the Anti-Homosexuality Act of Uganda, a "similarly formulated bill" called the Family Protection Bill was introduced to the National Assembly in 2023. The bill, written and introduced by Parliament member George Peter Opondo Kaluma, allows "aggravated homosexuality" to be punished with death and would criminalize all promotion of LGBT activity.
Article 45(2) of the Constitution of Kenya specifically authorises heterosexual marriage but makes no reference to same-sex marriage; "Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties".
In October 2009, two Kenyan men, Charles Ngengi and Daniel Chege, became civil partners at a ceremony in London, United Kingdom. The ceremony received widespread attention in Kenya, most of it critical. Chege's relatives were harassed severely by people living in his home village of Gathiru in Murang'a District.
In February 2010, a rumor spread in the coastal town of Mtwapa that two Kenyan men were going to marry in a local hotel. The rumor unleashed a "house-to-house witch hunt by anti-gay vigilantes, street attacks targeting gay men, the sacking of an AIDS-fighting medical center, and a widening wave of ultra-homophobic national media coverage". A local radio station, Kaya FM, picked up the story and started a series of programs on gays, which "included phone-in talk shows filled with homophobic discourse and incitements to violence". Baraka FM, Rahma FM, and ultimately national radio stations including Kiss and Classic FM also ran the story. Five days before the date of the non-existent wedding, "many of the muftis and imams discussed the impending wedding during Friday prayers and asked the community to be vigilant against homosexuals. They told their congregants to demonstrate and to flush out homosexuals from the midst of Mtwapa and to ensure that no gay wedding took place".
The day before the non-existent wedding, a press conference condemning the wedding was held by Sheikh Ali Hussein, regional coordinator of the Council of Imams and Preachers of Kenya, together with Bishop Lawrence Chai, regional representative of the National Council of Churches of Kenya. They warned that "God is about to punish the fastest-growing town in the Coast region. Come night, come day, we shall not allow that marriage to be conducted in this town tomorrow. We shall stand firm to flush out gays who throng this town every weekend from all corners of this country".
They also warned the owner of a building in the town, who was allegedly renting rooms only to homosexuals, to evict them within seven days or face their wrath. The two denounced the Mtwapa clinic run by the Kenya Medical Research Institute, which has an AIDS program for counseling and treating men who have sex with men. "We ask that the government shut it down with immediate effect or we will descend on its officials". A former member of Kenya's parliament, Omar Masumbuko, addressed the mob gathered outside the police station. He said that "homosexuality must be stopped and every means used to make that happen". He told the crowd "they should not even bother to bring the homosexuals they find to the police station but should take care of the issue themselves".
Female same-sex marriage is practiced among the Gikuyu, Nandi, Kamba, Kipsigis, and to a lesser extent neighboring peoples. Approximately 5–10% of women in these nations are in such marriages. However, this is not seen as homosexual, but is instead a way for families without sons to keep their inheritance within the family. The couples are considered married, though the terms used for them are mother-in-law and daughter-in-law. The female "husband" (the "mother-in-law") carries on the family name and property, while the female "wife" (the "daughter-in-law") bears children, with the intention of having a son. The female "husband" may be widowed, but may also have a living male husband, but he will not be the father of the female "wife's" children, and the identity of the biological father, though often kin, is kept secret. Such marriages may be polygamous; in 2010 a woman was interviewed who had taken five wives.
The Children Act, 2001 makes homosexuals and unmarried couples ineligible to adopt children. Even if that ineligibility does not apply specifically, "a court may refuse to make an adoption order in respect of any person or persons if it is satisfied for any reason that it would not be in the best interests of the welfare of the child to do so".
With respect to transgender persons, there is no legal means to change your gender in Kenya. The governmental Kenya National Commission on Human Rights reported in April 2012 that the transgender community face much discrimination in the country:
Transgender people face stigma, discrimination, and violence in Kenya. Discrimination in particular is prevalent, as is sexual violence. This is in the areas of recognition of a third sex by the government, access to justice, employment and other spheres of public life.
Transgender Education and Advocacy (TEA) is "a human rights organisation working towards ending human rights violations against transgender / transsexual people. Established in December 2008, the TEA aims to change the public mentality towards transgender / transsexual people through awareness raising campaigns, advocating for legal and policy reforms[,] and empowering transgender / transsexual people".
Intersex people face stigma, discrimination, and violence in Kenya, including mutilation and non-consensual medical interventions, and difficulties in obtaining documentation.
Kenya became a party to the International Covenant on Civil and Political Rights on 1 May 1972. Under Article 40 of the Covenant, the United Nations Human Rights Committee (UNHRC) reviewed and made recommendations on 24 March 2005 concerning Kenya's 18-years-late second periodic report. The UNHRC urged Kenya to repeal Section 162, Penal Code, which criminalises homosexuality. On 19 August 2010 in its third periodic report, Kenya responded formally to this recommendation:
Kenya further addressed these issues in May 2012:
The United Nations Human Rights Committee (UNHRC) in May 2010 completed a Universal Periodic Review of the human rights situation in Kenya. During the review, Kenya stated:
The following recommendations were made to Kenya (the country that initiated the recommendation is listed in parentheses):
In response, Kenya indicated on 6 May 2010 that same-sex unions were culturally unacceptable in Kenya. More specifically, Geoffrey Kibara, Secretary, Justice and Constitutional Affairs, Ministry of Justice, National Cohesion and Constitutional Affairs, said on behalf of the Kenyan delegation:
The U.S. Department of State's 2011 human rights report found that "societal discrimination based on sexual orientation was widespread [in 2011] and resulted in loss of employment and educational opportunities. Violence against the LGBT community also occurred, particularly in rural areas and among refugees. [Nongovernmental organisation] groups reported that police intervened to stop attacks but were not generally sympathetic to LGBT individuals or concerns".
On 26 June 2012, the United States embassy in Nairobi held what was believed to be the first ever LGBT pride event in Kenya. A public affairs officer at the embassy said, "The U.S. government for its part has made it clear that the advancement of human rights for LGBT people is central to our human rights policies around the world and to the realisation of our foreign policy goals". Similar events were held at other U.S. embassies around the world.
According to the 2020 Pew Global Attitudes Project, 14% of Kenyans said homosexuality should be accepted by society up from 1% in 2002. However, a majority (83%) responded that homosexuality should not be accepted by society.
The non-governmental Kenya Human Rights Commission published, in 2011, the first research paper on the legal and social status of LGBTI people in Kenya. Among those who came out or were outed to their family members, 89 percent reported that they were disowned. Employees were reported to have been terminated or subjected to hostility, ridicule, humiliation, and discrimination when their sexual orientation or gender identity became known in the workplace.
Traditional religious and cultural values play a substantial role in this figures. Leaders within the three dominate religions in Kenya, Catholic, Anglican and Islamic, condemn homosexuality and transgender identity as signs of decadence, disease, and immorality.
In June 2011, Kisauni Islamic College principal Sheikh Majid Obeid blamed inflation and drought on people who engage in same-sex acts. Council of Imams and Preachers of Kenya Organizing secretary Sheikh Mohammed Khalifa said, "We are asking Kenyans to shun businesses owned by such people and further show them open discrimination as a way of stopping the beastly act. They grossly abuse rights of others and should not be accepted among the society".
A mob of 100 people led by religious leaders and village elders on 23 February 2012 stormed a meeting of homosexuals at the Likoni CDF Youth Empowerment and Library Centre. Likoni police boss Abagarro Guyo and district officer Moses Ouma then ordered the meeting closed. Sheikh Amir Zani of the Muzadhalfa mosque described the seminar as "illegal, ungodly and unacceptable". He threatened to "mobilise the community to cane the gays if they organised such a meeting again". But the Ministry of Youth and Sports district officer, David Ogal, defended the organisers of the seminar and accused residents of misunderstanding their aims:
The governmental Kenya National Commission on Human Rights reported in April 2012 that,
In response, Peter Karanja, the general secretary of the National Council of Churches of Kenya, said on 11 May 2012,
Julius Kalu, a bishop of the Anglican Church of Kenya in Mombasa, was reported to have said in July 2012 that the movement to allow same-sex marriages is a bigger threat to the Christian church than terrorism, even though Christians in Kenya have endured several terror attacks in 2012. However, on 11 August 2012 during a meeting with LGBT Christians, Kalu denied having made that statement: "It was not me who said that gays are worse than terrorists. Never. However, all things work together for good to those who love God and I confess to you that, that article, however disparaging and infamous, has helped me know a lot about LGBT people. Because of it, I have been contacted by my fellow bishops in the listening group in the UK, Canada[,] and individual LGBTI people in Kenya. Therefore, let me clear the air on this issue, I never said anything of that sort! This is my very first time to ever see or even meet with LGBTI people and especially from Kenya. It is indeed a shame to me that I've been shepherding to LGBTI people in the Anglican Church when I even don't know!" The July 2012 murder of Tanzanian LGBT rights campaigner Maurice Mjomba was raised during the meeting and Kalu was reported to have "appeared visibly disturbed, saddened[,] and struck with grief" by the news. According to the report, "he stated that there was a need for human societies to live in love, care[,] and harmony with one another without assigning indifferences." He condemned the murder of Mjomba as a "heinous and cowardly" act and expressed the wish that someday soon LGBTI people will live in a free world without "violence and discrimination".
In 2014, the Kenya Film Classification Board (KFCB) banned the LGBT-themed film Stories of Our Lives, made by a Nairobi-based arts collective, from distribution or screening in Kenya, on the grounds that it "promotes" homosexuality.
In 2015, Mark Kariuki, head of the Evangelical Alliance in Kenya and a bishop, said that then U.S. President Barack Obama should "leave the gay talk in America" during his state visit to Kenya. He also said that he does not want to "open doors for [Kenya] to be destroyed."
Rafiki, a 2018 Kenyan drama film directed by Wanuri Kahiu was internationally successful and the first Kenyan film to be screened at the prestigious Cannes Film Festival in France. However it was banned by the KFCB "due to its homosexual theme and clear intent to promote lesbianism in Kenya contrary to the law". The KFCB warned that anyone found in possession of the film would be in breach of the law in Kenya, where gay sex is punishable by 14 years in jail. The ban raised international outrage by the supporters of LGBT rights.
The film's director, Wanuri Kahiu, sued Kenya's government, to allow the film to be screened and become eligible to be submitted as Kenya's entry for the Academy Award for Best Foreign Language Film at the 91st Academy Awards. On 21 September 2018, the Kenyan High Court lifted the ban on the film, allowing it to be screened in the country for seven days, therefore meeting the eligibility requirements. After the ban was lifted, the film was shown to a sold-out crowd at a cinema in Nairobi. Despite the ban being lifted, it was not selected as Kenya's submission in the Foreign Language Film category, with Supa Modo being sent instead.
In November 2010, Kenyan Prime Minister Raila Odinga said the behavior of gay couples was "unnatural" and that, "If found the homosexuals should be arrested and taken to relevant authorities". He asserted that "there was no need for homosexual relationships" because the most recent census showed there were more women than men. He said it was "madness for a man to fall in love with another man while there were plenty of women" and that "there was no need for women to engage in lesbianism yet they can bear children". Days later, Odinga denied ordering the arrest of gay couples, saying he meant only that same-sex marriages are illegal in Kenya.
In November 2010, the commissioner of prisons, Isaiah Osugo, announced a plan for closed-circuit television surveillance in Kenyan prisons to curb sex between male inmates.
The chief justice of the Kenyan Supreme Court, Willy Munyoki Mutunga, said at a groundbreaking ceremony for FIDA Uganda in Kampala on 8 September 2011,
When former U.S. President Barack Obama visited Kenya in July 2015, Kenyan President Uhuru Kenyatta rebutted Obama's stance on equal rights for all, including sexual orientation, by stating that for Kenyans LGBT rights are a non-issue and not in line with Kenyan culture.
In April 2018, Kenyan President Uhuru Kenyatta said that LGBT rights are "not acceptable" and "of no importance to the people of the Republic of Kenya." He also added that the LGBT rights issue in Kenya is not an "issue of human rights" but an "issue of [Kenyan] society and culture."
LGBT rights organisations in Kenya include Galck+, Gay Kenya Trust, National Gay & Lesbian Human Rights Commission, and the East Africa Trans Health & Advocacy Network.
In March 2019, 3 out of 5 judges in the Court of Appeal ruled that the government could not use colonial-era laws criminalising gay sexual activity to block the National Gay Lesbian Human Rights Commission (NGLHRC) from being registered as a non-profit organization, and dismissed the appeal after the government's Non-Governmental Organisations Coordination Board rejecting its application for registration as a charity on the basis that it was for gay and lesbian people. The government appealed the judgment to the Supreme Court, which in a 3-2 decision in 2023 dismissed the appeal.
The body of murdered LGBTQ activist and fashion business owner, Edwin Chiloba, was found in Uasin Gishu on 3 January 2023.
On April 30, 2024, the Mombasa High Court issued a ruling to stop anti-gay groups from inciting violence against the LGBTQ+ community, which was initiated by the Centre for Minority Rights and Strategic Litigation (CMRSL) who are seeking to protect the LGBTQ+ community from discrimination. The final ruling of this decision is expected to be on July 24, 2024.