The Lesbian, Gay, Bisexual, and Transgender community recently won when the Supreme Court upheld the right for LGBT organizations to be registered. However, this has spurred a wave of homophobic disinformation. LGBTQ rights are human rights. Laws that affect the community can often be unjust, even for non-LGBT persons.
The 2010 Constitution protects all Kenyans in some instances. The law can have various limitations on rights but the rights that can’t be limited are:
- Freedom from torture and cruel, inhuman, or degrading treatment or punishment
- Freedom from slavery or servitude
- Right to a fair trial
- Right to an order that a person is presented before a Court of Law.
Article 27 states that every person is equal before the law. Specifically, it says The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. While it doesn’t specify sexual orientation, the state, and individuals aren’t allowed to discriminate against people due to their sexual orientation.
Which laws target the LGBT community?
Penal Codes 162 and 165 are primarily used to target the community.
Section 162 criminalises any person who has carnal knowledge against the order of nature or permits a person to have carnal knowledge against the order of nature. This includes sexual activity outside penetrative heterosexual sex. Activities such as anal sex, hand jobs, blowjobs, or frottage are considered illegal. This applies to gay or straight couples and carries a prison sentence of up to 14 years.
Section 165 says that any man who commits an act of gross indecency with another man can get a sentence of up to 5 years in prison. Gross indecency includes kissing, hugging, holding hands, foreplay, or sharing a bed. This doesn’t take into account whether the individuals are straight or not.
Female LGBT persons aren’t recognised by the law. “Female homosexuality” isn’t illegal. Gay marriage isn’t legal in the country. The constitution still defines marriage as a union between a male and female adult.
Openly identifying as a member of the LGBT community isn’t a crime. However, openly gay people aren’t allowed to adopt children or serve in the military.
The Employment Act declares that everyone has equality of opportunity. The Act states an employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.
Article 43 of the constitution states that every person has to have accessible and adequate housing and reasonable standards of sanitation. The Rent Restriction Act states that landlords can only lawfully repossess property or eject a tenant if rent remains unpaid, the tenant is a nuisance to other residents, or the tenant is using the property for illegal activity. Notably, landlords cannot evict people without an order from the Rent Tribunal.
The future of LGBT rights
The courts have quashed previous actions to repeal penal code 162. But there have been a few successes. In 2018, the Court of Appeal ruled that forced anal examinations of those accused of same-sex coupling are illegal. In the following year, the Appellate ruled that the government couldn’t use the criminalisation of same-sex relationships to prevent LGBT rights NGOs. The Supreme Court ruled that the LGBT community has the right to association in 2023.
Gender recognition in the country is more promising. In 2014, the High Court recognized intersex persons as people before the law. Intersex people face a lot of stigma. Hospitals also used to put a question mark on the birth certificates of intersex infants, which led to some of them not receiving their birth certificates, denying them access to basic rights like schooling. In other instances, parents would force the infants to receive corrective surgery. Studies show that this is harmful and can result in lifelong suffering. Genital surgery on intersex children is now illegal.
In 2019, trans activist Audrey Mbugua successfully won the right to have her gender changed in her Kenya National Examination Council certificates at the Court of Appeal. It’s possible to change your gender on official documents, but it may require a surgical transition. The government also added Intersex identity as a gender marker in the 2019 national census. The state doesn’t recognise non-binary people legally.
This doesn’t protect LGBT persons from arrest. Police also harass asylum-seekers and sex workers.
Article 10 of the Constitution states that all national principles of governance include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalised. To follow this mandate, the state must protect LGBT people from discrimination or prevent further marginalisation. It’s unconstitutional for the state to fail to create policies that ensure the health and protection of everyone’s rights when Article 10 exists. The state owes every Kenyan dignity, equity, and social justice.
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