Kenya LGBT: Decriminalisation of gay sex could ‘hail a new dawn’ at home and across Africa

On Friday*, Kenya’s High Court will decide whether to strike down two sections of its colonial-era penal code, which criminalise gay sex. LGBT+ activists at the heart of the legal battle say the ruling could open up a “world of opportunities for queer people in Kenya.”

It will be three years this April that queer activist Eric Gitari first filed a discrimination lawsuit challenging the constitutional validity of sections 162 (a) and (c), 163, and 165 of Kenya’s penal code.

This legislation, introduced in 1930 by the British Empire, criminalises sodomy and makes sexual acts “against the order of nature” punishable by 14 years’ imprisonment.

It has been, Gitari tells PinkNews, a “long-term, incremental litigation process” to get to this point.

The hearing comes after judges listened to submissions in October about the relevance of the Indian Supreme Court’s decision to overturn Section 377, a similar British colonial law banning gay sex.

The Kenyan High Court’s decision will mark a pivotal moment for LGBT+ rights not only for the nearly 50 million people living in Kenya, but also across countries in east Africa.

Campaigners tell PinkNews that they expect a positive decision to have a domino effect, opening the doors for the legalisation of same-sex sexual activity in nearby Uganda and South Sudan.

Gitari, who filed the decriminalisation petition on behalf of the National Gay and Lesbian Human Rights Commission (NGLHRC), a Nairobi-based non-governmental organisation which he co-founded, has contrasting feelings about the hearing.

Speaking over the phone from Boston, USA, Gitari says that, on one hand, his group’s previous legal successes are “indicative of the possibility and high probability of success that the law will be struck down.” (Last year, the NGLHRC scored a win in a separate case when the Court of Appeal of Kenya ruled that forced anal examinations on people accused of same-sex relations is unconstitutional.)

NGLHRC’s office in Nairobi, Kenya. (Emily McCartney)

On the other hand, Gitari is treating the ruling with “cautious optimism” because, he says, of “ongoing political intimidation upon the judiciary by the executive branch of government.”

A number of leading political figures in Kenya have spoken out against LGBT+ rights, with President Uhuru Kenyatta claiming in an interview with CNN in April 2018 that LGBT+ rights are “of no importance” to citizens of the country.