Types of criminalisation
- Criminalises sex between men
Commonwealth member state
Section 163 prohibits attempts to commit the offences criminalised under Section 162, with a penalty of seven years imprisonment.2
Section 165 prohibits acts of “gross indecency” between men, or the procurement or attempted procurement thereof, with a penalty of five years imprisonment.3
The US Department of State Human Rights Report on Kenya stated that police still detain persons under the laws that criminalise same-sex sexual activities.
The US Department of State Human Rights Report on Kenya noted statistics presented in the National Assembly in March indicating that police had opened files on 595 unnatural offences cases since 2010, including 49 in 2014. According to a 2014 report issued by the Gay and Lesbian Coalition of Kenya and the National Gay and Lesbian Human Rights Commission, between 2012 and 2014 there were eight prosecutions of gay men on charges of ‘gross indecency.’
Statements by Public Figures
In his Easter address, Anglican Archbishop of Nairobi, Jackson Ole Sapit, reiterated the church’s opposition to the decriminalisation of same-sex marriage, conflating the issue of marriage equality with the ongoing court case challenging the criminalisation of same-sex activity. The Archbishop stated that, “to grant rights and freedom regardless of God’s will is to condone chaos and destruction. Human sexual orientation is a biological condition, while conduct is a moral choice. Likewise, African culture forbids homosexual conduct.”
In an interview with CNN in April, President Uhuru Kenyatta stated that LGBT rights are not an urgent issue for Kenya. He added that homosexuality is counter to the cultural beliefs of majority of Kenyans. He explained further saying “I won’t engage in a subject that is of no importance to the people of Kenya. This is not an issue of human rights, this is an issue of our own base as a culture, as a people regardless of which community you come from”.
In an October interview with CNN’s Fareed Zakaria, Kenyatta made his strongest statement in support of basic rights for LGBT people. For the first time, he publicly condemned violence and “witch hunts” against LGBT people. He added: “Every individual has a right to be protected by the law and that’s stated in our Constitution”.
In September, the Anglican Church of Kenya suspended five priests suspected of engaging in same-sex sexual acts. Speaking on this issue, Mt. Kenya West Diocese Bishop Joseph Kagunda said: “it must be noted that the Anglican Church of Kenya and particularly the Diocese is totally against any kind of gay practice and marriage”.
During his visit to Kenya in July, US President Obama said in a joint press conference that Kenya should not discriminate against people based on their sexual orientation. He explained that “If you look at the history of countries around the world, when you start treating people differently, not because of any harm they’re doing anybody but because they’re different, that’s the path whereby freedoms begin to erode… As an African-American in the United States, I’m painfully aware of the history of what happens when people are treated differently under the law.” In response, President Kenyatta noted that despite the US and Kenya sharing some values such as “love for democracy, entrepreneurship [and] value for families, there are some things Kenyan culture and society do not accept”. He said “the fact remains that this issue is not really an issue that is in the foremost mind of Kenyans.”
Ahead of President Obama’s visit to Kenya, President Kenyatta dismissed the issue of LGBT rights. He is reported to have said: “‘That is a non-issue to the people of this country, and it is definitely not on our agenda at all… Poverty, improved health for our people, better education, better roads, better security, these are our key focuses.”
Irungu Kangata MP allegedly told a gathering of anti-gay protesters outside Parliament in July that: “[w]e are telling Mr Obama when he comes to Kenya this month and he tries to bring the abortion agenda, the gay agenda, we shall tell him to shut up and go home.” It was reported that the demonstration suffered low turnout, attracting only a handful of protesters.
In May, Murang Diocese Catholic Bishop, Rt. Rev. James Wainaina condemned the recent High Court ruling ordering the registration of an LGBT organisation. He reportedly said that the Catholic Church in Kenya is not ready and will not accept any law allowing homosexuality in society. In contrast, Catholic Parish Priest, Fr. Ambrose Kimutai, cautioned top clerics against making statements stigmatising and isolating gay people. Fr. Kimutai is reported to have said that Christians should love homosexuals as they are “children of god”.
In May, Vice President William Ruto told church worshippers that homosexuality had no place in Kenya. He is reported to have said: “We will not allow homosexuality in our society as it violates our religious and cultural beliefs… We will stand with religious leaders to defend our faith and our beliefs… There’s no room for homosexuality in this country. That one I can assure you.”
In April, the Archbishop of the Kenyan Anglican Church, Eliud Wabukala, called on the NGO Coordination Board not to comply with the Kenyan High Court’s order requiring the government body to register an LGBT organisation. Archbishop Wabukala stated that “[t]he judgement was made on very narrow considerations and it is not only against Christianity but also against the Muslim teachings and traditions.”
In September, Kenya opposed the UN Human Rights Council resolution condemning violence and discrimination based on sexual orientation and gender identity.
As part of the 2015 UPR process, the Kenya Human Rights Commission, together with other civil society human rights organisations, submitted a joint report. With respect to sexual minorities the report recommended that: “[t]he government should ensure that barriers to accessing health services are removed and policies put in place to promote and protect the rights of LGBTI persons to access the highest attainable standard of health care including reproductive health. The government should also publicly condemn and take action against those propagating attacks, hateful and inciteful sentiments against LGBTI persons and decriminalize consensual same sex conduct between adults.”
In May, Kenyan filmmaker, Wanuri Kahiu, made a statement to the press that it is not homosexuality that is un-African but homophobia.
A number of Kenyan MPs discussed the anti-homosexuality laws in Parliament in May. Aiden Duale MP, upon being asked why the government was not actively pursuing homosexuals, responded by comparing gay people with terrorists, arguing: “We need to go on and address this issue the way we want to address terrorism… It’s as serious as terrorism. It’s as serious as any other social evil.” Other MPs made similarly homophobic remarks, including one which asked about the best approach to stop Ugandan gay refugees from crossing the borders. In the course of the debate Mr. Duale did concede that no new anti-homosexuality laws would be implemented: “We do not need to go the Uganda way, we have the constitution and the penal code to deal with homosexuality, and so this debate is finished, we will not be enacting any new tougher laws.”
In April, Kenyan pastor, John Makokha, invited the LGBT community to join his church: “Gays and lesbians are children of God and created in his image… they should be accepted and affirmed as such. They deserve a place to worship and serve God.”
Gay Kenyan author, Binyavanga Wainaina, was named in The Times 100 most influential people in April. Coming out in January, Wainaina spoke of the anti-homosexuality laws recently introduced in Uganda and (specifically) Nigeria: “It’s hard to imagine any more repressive law of any kind anywhere in the world. It’s just the most terrible thing.”
KTN TV, Kenya’s leading national news station, invited gay rights activists to talk about LGBT equality in January.
In May, the Kenyan National Commission on Human Rights released a report on sexual and reproductive health in Kenya, and called for the removal of anti-gay legislation: “The government should decriminalise same sex relationships and sex work with a view to ensure that they enjoy the human rights enshrined in the Constitution 2010 under the Bill of Rights.”
Persecution and Discrimination
In June, the Kakuma Refugee Camp in north-western Kenya held its first LGBT pride event. Later, threatening messages were pinned all over the camp which warned LGBT refugees to “leave the camp” or “we are going to kill you one by one.” In December, a group of LGBT refugees and
asylum-seekers were subjected to violence at the camp.
The US Department of State Human Rights Report on Kenya stated that police frequently harassed, intimidated, or physically abused LGBT individuals in custody. Cases of mob violence based on sexual orientation and the subsequent arrest of the victims have also been reported.
The Anglican Church of Kenya suspended five priests suspected of engaging in same-sex sexual acts in September.
In the same month, Nyeri County Commissioner issued arrest threats against gay and lesbian sex workers and the head of police reportedly said that 12 suspects had been arrested.
A Kenyan pastor and his partner were reportedly forced to flee the country in August after it emerged that they had become the first to publicly marry.
Reports emerged in July that two men, suspected of being a gay couple, were evicted from their home by their landlord because of their sexual orientation.
In May, a tabloid newspaper in Kenya began printing lists of what it claimed as “top homos” in an attempt to “out” gay people. The article was accompanied by ten front page photos, featuring a number of LGBT rights activists.
According to a report in March, LGBT people fleeing Uganda were attacked, poisoned, threatened and forced into sex work in the world’s third largest refugee camp in Kenya. The police reportedly didn’t want to work on such cases.
An “anti-gay” caucus was formed in Parliament. The National Assembly majority leader stated that homosexuality was as serious an issue as terrorism but resisted calls for new anti-LGBT legislation. Several NGOs conducted anti-LGBT political campaigns, including one that announced a drive to collect one million signatures on a petition against homosexuality. While these campaigns resulted in scattered demonstrations, they did not attract widespread support.
In March, a report found that hundreds of gay men had left major Kenyan Cities for fear of persecution. The article also suggested that many MSM now “avoid public health facilities”.
Whilst one report suggested that persecutory acts against gay people in Kenya were less common and that Kenyan people were becoming increasingly tolerant, the same report warned of the recent re-emergence of such hostility.
A number of violent acts against gay men were recorded in July following a report claiming that some Kenyan towns have the highest number of gay men in the world. Within one week, separate reports emerged of men having had their throats cut with a machete (one of whom died), a sexual assault and an attack with a hammer, a call for violence against sex workers in Mombasa, beatings and blackmail.
Protesters of the Kenyan anti-gay law had their permit revoked just before a planned IDAHOT march in May. According to reports, the protesters were stopped because they were seen to be “promoting homosexuality”.
A report by the Kenyan Human Rights Commission details many instances of persecution. The report recounts instances of harassment by state officials, exclusion by families, physical violence, death threats and blackmail: “LGBTI sex workers, mostly MSMs are often asked for bribes and sexual favours by male police officers in exchange for their freedom and security.”
On 24th May, the Kenyan High Court held that Sections 162 and 165 of the Penal Code, which criminalise consensual same-sex intimacy, do not violate the Kenyan Constitution. In particular, the Court found no violations of the prohibition against discrimination, the right to health, the right to fair trial, the right to freedom & security of the person, the prohibition of cruel, inhuman or degrading treatment or punishment, freedom of conscience, religion, belief and opinion, the right to dignity and the right to privacy. In addition, the Court held that the challenged provisions were not unconstitutional by virtue of being vague. With regard to privacy and dignity in particular, the Court reasoned that, in light of the Article 45 of the Constitution – which defines marriage as between people of the opposite sex and identifies the family as “the natural and fundamental unit of society and the necessary basis of social order” – they could not strike down Sections 162 and 165, as it would lead to the recognition and encouragement of same-sex unions. They also placed emphasis on the the deliberate (and recent) drafting of the 2010 Constitution, in particular with regard to marriage under Article 45. Notably, they also asserted that there was no conclusive scientific consensus that homosexuality, or same-sex attraction, is innate.
On 22nd March, the Court of Appeal upheld (by a majority of 3 to 2) a 2015 High Court judgment that the NGO Coordination Board’s refusal to register National Gay and Lesbian Human Rights Commission (NGLHRC) was in violation of the right to freedom of association (Article 36) and equality before the law/freedom from discrimination (Article 27) under the Kenyan Constitution. In responding to the judgment, the Executive Director of NGLHRC, Njeri Gateru, said:
“The judges have chosen to stand by the constitution that allows for like-minded persons to meet and organise, formally. The ruling only brings inclusivity and sets a positive precedent for other rights organisations, in Kenya and around Africa.”
It was announced on 22nd February 2019 that the judgment on a case challenging the criminalisation of consensual same-sex intimacy would be delayed until 24th May, to allow the judges more time to consider the evidence.
In October, the Kenya High court in Nairobi announced 22 February 2019 as the date on which it would deliver a ruling on the landmark case challenging the criminalisation of consensual same-sex intimacy.
In September, the Kenyan High Court temporarily lifted the ban on ‘Rafiki’, a movie about love between two women. The film had been banned by Kenya’s Film and Classification Board in April because of its lesbian theme and promoting lesbianism.
In March, Kenya’s Court of Appeal ruled that the use of forced anal exams to determine whether gay men engaged in sex is illegal. The court determined such examinations to be not only unconstitutional but unreasonable, totally unnecessary and violative of Article 19(2) of the Constitution, which states that “the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities.” The National Gay and Lesbian Human Rights Commission (NGLHRC) brought the case after two men were arrested in 2015 on suspicion of having sex. The Kenya Medical Association notably resolved in 2017 to “condemn and discourage any form of forced examination of clients, even in the guise of
discovering crimes, and to advise practitioners to always conduct consenting procedures for all clients they examine.”
In April, NGLHRC filed a petition (no. 150 of 2016) challenging the constitutionality of these penal codes. As of November, two cases filed by NGOs in early 2016 to test the constitutionality of these laws remained unresolved.
During Kenya’s second UPR cycle, a number of stakeholders, international treaty bodies and states recommended that Kenya decriminalise sexual relations between consenting adults of the same sex and put an end to the social stigmatisation of homosexuality. The recommendations from states to decriminalise sexual relations between consenting adults of the same sex were noted by Kenya. However, Kenya supported the recommendation made by Sweden to adopt a comprehensive anti-discrimination law affording protection to all individuals, irrespective of their sexual orientation or gender.
In April, the High Court in Kenya held that the refusal by the NGO Coordination Board to register an LGBT rights NGO (NGLHRC), on the basis that homosexuality is criminalised in the East African country, was unconstitutional. The Board was accordingly ordered to register the NGO. The High Court found that Article 36 of the Constitution grants “every person” the right to form an association “of any kind” regardless of their gender or sexual orientation and that the Penal Code does not criminalise homosexuality, but rather certain sexual acts “against the order of nature”, which is not defined, nor does it contain any provision that limits the freedom of association of individuals on the basis of their sexual orientation. In response to arguments concerning religion and morality, the Court held that religious and moral beliefs could not be a basis for limiting rights. With respect to Article 27 of the Constitution that protects the right to equality and non-discrimination, the Court found that Article 27 includes discrimination on basis of sexual orientation based on the breadth of that article and a holistic reading of the Constitution which emphasizes inclusiveness, human dignity and equality (as the Court put it “to allow discrimination based on sexual orientation would be counter to these constitutional principles”). The NGO Coordination Board and the Attorney General filed notice of their intention to appeal the decision on 29 April 2015. In June 2015, the NGO Coordination Board filed its memorandum of appeal. The appeal judgement is due to be delivered on 8 March 2019.
In December, the High Court of Kenya ordered the government to issue a birth certificate to a five-year-old intersex child after hospital staff put a question mark next to the box designating gender on a form to record the 2009 birth of the baby. The Court also ordered the Attorney General to name a body that would take responsibility for conducting a census of intersex Kenyans and to develop guidelines and policies for their recognition and support. The Court found no particular violations of the child’s fundamental rights by any authority or person.
In August, members of Kenya’s Parliamentary Committee on Justice and Legal Affairs rejected the introduction of a bill similar to the Anti-Homosexuality Bill in Uganda. The bill had been introduced by the Republican Liberty Party and would have imposed harsh new penalties for same-sex relations. According to news reports, the bill was rejected because the proposal was unconstitutional, improperly introduced to parliament and in violation of Kenya’s international obligations.
In July, the High Court of Kenya ordered the NGO Coordination Board to register a transgender advocacy group, the Transgender Education and Advocacy (TEA), finding that the Board had discriminated against the TEA and denied the organisation its right to freedom of association on the basis of gender or sex, which was unconstitutional, and its inaction in refusing to register the TEA constituted an unreasonable exercise of discretion.
Monica Mbaru, a prominent LGBT human rights defender, was appointed as a judge on the Kenyan Industrial Court in July.
During its first UPR cycle, Kenya rejected recommendations to decriminalise same-sex sexual activity and to take active measures to provide for the protection of LGBT people.
1. Penal Code 1930, Section 162 Unnatural Offences
(a) has carnal knowledge of any person against the order of
(c) permits a male person to have carnal knowledge of him or
her against the order of nature,
is guilty of a felony and is liable to imprisonment for fourteen years…” Full text.
See Human Dignity Trust, Breaking the Silence (2016), p.13 on the application of s.162 to intercourse between men and between women.
2. Penal Code 1930, Section 163 Attempt to Commit Unnatural Offences
“Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.” Full text.
3. Penal Code 1930, Section 165 Indecent Practices Between Males
“Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.” Full text.