Kenya Court Upholds Outdated Anti-Gay Laws

Activists Vow to Appeal the Decision

Nairobi, May 24, 2019 — Kenya’s High Court has upheld colonial-era laws that criminalize same-sex relations between consenting adults, a decision seen by human rights advocates as a major setback for equality and justice in the country, Human Rights Watch said today.

The ruling came in response to a 2016 petition filed by three Kenyan organizations defending the rights of lesbian, gay, bisexual, and transgender (LGBT) people. They argued that sections 162 and 165 of Kenya’s penal code, which ban same-sex conduct, violate constitutional rights to equality, non-discrimination, dignity, privacy, and health.

“Kenya’s High Court has relegated LGBT people to second-class citizenship under the absurd claim that the penal code is not discriminatory,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “Fundamental rights cannot be denied on the basis of social disapproval. The Court of Appeal should urgently overturn this ruling.”

Colonial-Era Laws Still in Force

Kenya’s anti-homosexuality laws date back to 1897, when they were imposed by British colonial authorities. Article 162 punishes “carnal knowledge against the order of nature” with up to 14 years in prison, while article 165 prescribes up to five years for “indecent practices between males.”

Although prosecutions are rare—only two cases involving four people have been recorded in the past decade—the laws continue to fuel discrimination and abuse. Police often use them as a pretext to harass, extort, or deny services to LGBT individuals, while employers, schools, and landlords use them to justify exclusion and mistreatment. The laws have also been cited to block LGBT organizations from registering and to censor art or public discourse on queer issues.

The Legal Challenge

Eric Gitari, then head of the National Gay and Lesbian Human Rights Commission (NGLHRC), filed one of two petitions challenging these laws in 2016. The Gay and Lesbian Coalition of Kenya (GALCK) and the Nyanza, Rift Valley and Western Kenya Network (NYARWEK), along with other individuals personally affected, filed the second. The High Court later merged the petitions and heard them before a three-judge panel.

The court ruled that the challenged provisions were not discriminatory since they did not explicitly mention LGBT people, and that the petitioners failed to prove their rights had been violated. It further held that the constitutional rights to privacy and dignity are not absolute and must be interpreted alongside Article 45, which defines marriage as between a man and a woman — even though the case did not concern marriage at all.

A Reversal of Earlier Progress

The ruling contradicts several recent court decisions that had affirmed the rights of LGBT Kenyans. In 2015, the High Court ordered the NGO Board to register NGLHRC, finding that refusal to do so constituted discrimination. The Court of Appeal upheld that judgment in 2019. Other landmark decisions include a 2018 ruling declaring forced anal examinations of men accused of same-sex relations to be a form of torture, and 2014 judgments affirming the rights of transgender activist Audrey Mbugua to have her school certificate reissued under her female name and compelling the registration of her organization, Transgender Education and Advocacy (TEA).

Kenya Out of Step with Global Trends

Kenya’s continued criminalization of same-sex relations violates its international obligations under treaties such as the International Covenant on Civil and Political Rights (ICCPR). In 1994, the UN Human Rights Committee found in Toonen v. Australia that laws prohibiting consensual same-sex conduct breach the rights to privacy and equality.

The decision also stands in contrast to reforms across Africa and beyond. Angola, Seychelles, Mozambique, São Tomé and Príncipe, and Lesotho have all decriminalized same-sex relations in recent years, while Botswana’s High Court is set to review its own anti-gay laws. Still, 33 African countries retain similar prohibitions, with Chad even introducing such laws as recently as 2017.

Globally, several former colonies—including India, Belize, and Trinidad and Tobago—have struck down comparable statutes in recent court rulings.

Mixed Signals from the Government

President Uhuru Kenyatta has sent conflicting messages on LGBT rights, once describing homosexuality as “not acceptable,” but also pledging not to allow violence or witch hunts against LGBT citizens. Kenya accepted a 2015 UN recommendation to outlaw discrimination based on sexual orientation and gender identity, yet no law has been enacted to that effect.

Activists to Appeal

LGBT advocates say they will appeal the High Court’s decision.

“Kenya has missed an opportunity to take a clear stand against discrimination,” said Njeri Gateru, executive director of NGLHRC. “I believe justice will eventually prevail here, as it has in many parts of the world. But until then, ordinary LGBT Kenyans will continue to bear the cost of the state’s failure to protect them.”