Kenya High Court upholds law criminalising gay sex

The High Court in Kenya has ruled not to decriminalise gay sex in a disappointing decision for LGBT+ activists hoping to repeal sections of the country’s penal code.

Three judges made the judgement on Friday (May 24).

Justice Aburili opened the reading and Justice Chacha Mwita then read his judgement, followed by Justice John Mativo.

It has been three years and one month since queer activist Eric Gitari first filed a discrimination lawsuit challenging the constitutional validity of two sections of Kenya’s colonial-era penal code.

The ruling means that Sections 162 (a) and (c), 163 and 165 of Kenya’s penal code remain in place and homosexual relations are still criminalised.

These parts of the penal code – introduced by the British Empire in 1930 – criminalise sodomy, and make sexual acts “against the order of nature,” interpreted as including same-sex sexual relations, currently punishable by 14 years’ imprisonment.

LGBT+ activists in Kenya had been “cautiously optimistic” ahead of Friday’s ruling, Mercy Njueh of the National Gay and Lesbian Human Rights Commission (NGLHRC) in Kenya told PinkNews their hopes are now shattered.

“A positive ruling would have allowed LGBTIQ+ persons to enjoy their basic human rights, and be able to live as equal Kenyans,” she said.

The High Court was supposed to issue its verdict in February, but postponed it at the last minute.

Téa Braun, director of the Human Dignity Trust, told PinkNews that the judgment is “very significant for Africa, as it will be worldwide.”

“This would have been the first court decision on the continent since South Africa in 1998 to rule on the issue of LGBT criminalisation, and could have signalled the beginning of the wider dismantling of these archaic and discriminatory laws,” Braun said.

“The trend across the Commonwealth and the world is already clear: these laws have no place in a constitutional democracy and they must go. At the Human Dignity Trust, we hope that other Commonwealth governments will save litigants and taxpayers the time and expense of going to court and just repeal these laws,” she said.