Kenya

Same-sex sexual activity is prohibited under the Penal Code 1930, which criminalises acts of ‘gross indecency’ and ‘carnal knowledge against the order of nature’. These provisions carry a maximum penalty of fourteen years’ imprisonment. Only men are criminalised under this law.

The law was inherited from the British during the colonial period, in which the English criminal law was imposed upon Kenya. Kenya retained its colonial-era penal code upon independence and continues to criminalise same-sex sexual activity today.

There is some evidence of the law being enforced in recent years, with LGBT people occasionally being subject to arrest under the criminalising provisions, though reports suggest that police more often use laws criminalising ‘loitering’, ‘solicitation’, and ‘impersonation’ to arrest LGBT people. There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including high-profile attacks against LGBT refugees in Kakuma Refugee Camp.

Kenya has seen a number of significant legal challenges to criminalising provisions and the treatment of LGBT people and organisations in recent years. These have included a case that established that the use of forced anal examinations is illegal and a case that upheld the right of LGBT people to form and register organisations. A constitutional challenge to the laws criminalising same-sex sexual activity was rejected in 2019 by the High Court and is currently being appealed to the Court of Appeal.

2024

In April, the High Court in Mombasa issued an interim ruling on a case brought in October 2023 by the Centre for Minority Rights and Strategic Litigation and Mr. JM (see below). The court reportedly ordered anti-LGBT groups and individuals to refrain from inciting violence against LGBT people in Kenya. The court order prohibits anti-LGBT activists from “calling on or inciting members of the public to carry out extra-judicial killing, lynching, punishing, stoning, forcible conversion or any other means of harming LGBTQ+ identifying persons and their homes, expulsion from Kenya or any part of Kenya of LGBTQ+ identifying persons or closure of organisations serving LGBTQ+ identifying persons serving LGBTQ+ identifying persons.” This is a temporary order ahead of the court hearing the full case, and it is expected that hearings will begin on 24 July.

2023

In February, the Kenyan Supreme Court ruled that the National Gay and Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a non-governmental organisation (NGO).

In their the Supreme Court judges held that, ‘(…) it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants.’

Importantly, they also ruled, ‘Given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not.’

The Supreme Court is the apex court in Kenya, meaning that the ruling is final and concludes a legal case lasting ten years. Nevertheless, MP Peter Kaluma filed a legal challenge against the Supreme Court decision.

In April, Peter Kaluma, Member of Parliament for an opposition party, proposed a bill to  further criminalise LGBT people in Kenya. The so-called  Family Protection Bill 2023 seeks to penalise consensual same-sex sexual activity by a minimum of 10 years in prison , and to introduce the death penalty for ”aggravated homosexuality”.

Amongst other things, the proposed bill would also impose a minimum 10-year sentence for activities intended to change public opinion towards LGBT+ rights, in a measure clearly aimed at silencing activists.

In September, the Kenyan Supreme Court upheld its February judgment, thus reaffirming the constitutional right to association of the NGLHRC. The Supreme Court found that Mr Kaluma’s application was a ‘disguised appeal’. The Court further declared: “The applicant is an Advocate of the High Court of Kenya and a Member of Parliament. He  ought to have known that his application was misconceived ab initio.”

Also in September, the High Court at Kiambu upheld the decision of a high school board to expel a student (a minor) over claims of lesbianism.

It was reported in September that MP Peter Kaluma had written to the National Assembly Speaker, notifying him of his proposal to have the term “sex” redefined in Article 259(4) of the Constitution. This Article prohibits State discrimination against minorities, including on the basis of “sex”, which courts have interpreted to include “sexual orientation”. Mr Kaluma is proposing a constitutional amendment to ensure “sex” can only be interpreted as the biological state of being male or female assigned at birth.

It was also reported in September that Members of the County Assembly of Mombasa were considering introducing a Bill which prohibits LGBT organisations from working in Mombasa.

In October, the Centre for Minority Rights and Strategic Litigation and Mr. JM brought a case against the Police Inspector for allowing religious leaders and lobby groups to hold homophobic protests whenever a court rules in favour of the LGBT community. This case was brought in response to a series of homophobic demonstrations following the Supreme Court’s affirmation in September of the earlier decision allowing the National Gay and Lesbian Rights Commission (NGLHRC) to register as a non-government organisation. The petitioners reportedly argued that anti-LGBT activists are violating the human rights of the LGBT community, as the group’s religious and political leaders mobilised rallies and marches to protest the Supreme Court’s February ruling, spreading misinformation and hate speech against the LGBT community.

2021

In November, the Supreme Court heard an appeal against the 2019 Court of Appeal decision which found that the NGO Coordination Board’s refusal to register the National Gay and Lesbian Human Rights Commission, an LGBT NGO, was unconstitutional (see further below).

2019

On 22 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.”

Following earlier in the year, on 24 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 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.

2018

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.”

2016 

In April, NGLHRC filed a petition (no. 150 of 2016) challenging the constitutionality of the provisions criminalising consensual same-sex intimacy in the Penal Code. Judgment in the case was delivered in 2019 (see above).

2015

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 same-sex activity 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 as an identity, 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. The appeal was heard in 2019 and eventually concluded in the Supreme Court in 2023 (see above).

2014

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.

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.

2023

A US Department of State report noted that LGBT organisations reported that police more frequently use public order laws (such as disturbing the peace), rather than section 162 of the Penal Code, to arrest LGBT persons. They also reported that police frequently harass, intimidate or physically abuse LGBT individuals in custody. NGOs further reported that Kenyan police threaten gay men with anal examinations while in custody, a medically discredited practice which the Court of Appeal of Kenya ruled to be illegal in 2018.

2020

AUS Department of State report found that police detained people under the criminalising provisions, particularly people suspected of prostitution, though they were released shortly after. The same report noted that LGBT organisations reported that police more frequently used public order laws (such as ‘disturbing the peace’) to arrest LGBT people than the criminalising provisions.

In August, two men were arrested in Kakamega County for engaging in ‘homosexual acts’.

2019

In an article published on 24 May, Human Rights Watch reported that the laws criminalising same-sex sexual activity were rarely enforced, and that it was only aware of two prosecutions against four people under section 162 in the last 10 years.

In October, police arrested three men for violating the criminalising provisions. The men denied the charge and were released on bail.

2015

In February, two allegedly gay men were arrested, arbitrarily detained, and subjected to violating anal ‘examinations’ after videos and photos of men engaged in same-sex sexual activity were made public. This incident led to the legal challenge against the practice of anal exams, which the Court of Appeal found to be unconstitutional in 2018 (see above).

A report by Amnesty International found that LGBT people are usually arrested under laws criminalising ‘loitering’, ‘solicitation’, or ‘impersonation’, rather than the explicitly criminalising provisions.

2014

Statistics presented to the National Assembly in March indicated that police had opened 595 ‘unnatural offences’ cases since 2010, including 49 in 2014.

2024

In January, a group reportedly broke into a community-based LGBT organisation, Let’s Be Tested Queens CBO, and vandalised property inside the premises.

In February, it was reported that a group of Muslim and Christian religious leaders signed a petition urging Parliament to investigate the “rise of the LGBTQ agenda in the country”. The religious leaders further endorsed the Family Protection Bill, which would increase penalties for same-sex intimacy. The petition reportedly claims that “we have witnessed persistent, well-orchestrated and well-financed attempts by persons identifying themselves as representing the LGBTQ community to have laws prohibiting homosexuality declared unconstitutional. They have filed numerous cases and petitions in our courts”. The petition also claimed there was an “infiltration” of the LGBT agenda in the Kenyan school curriculum.

2023

A US Department of State report noted that violence against LGBT persons was reported to be particularly widespread throughout this year. LGBT organisations reported that police failed to prevent harassment against LGBT persons during anti-LGBT protests in coastal communities in March. The Kenya National Commission on Human Rights (KNCHR) received at least 60 reports from LGBT persons who believed they were at risk of being attacked during the protests in March and September (protests against the Supreme Court ruling affirming the right of LGBT organisations to register as NGOs – see above). Civil society organisations further reported evictions of LGBT persons following the protests. LGBT organisations reported that their caseloads increased four-fold during the year, as LGBT persons faced harassment, discrimination, evictions, blackmail and extortion following the backlash against the February Supreme Court ruling. Finally, LGBT organisations reported an increase in conversion therapy and corrective rape practices, including forced marriage, exorcism, physical violence, psychological violence, and detainment.

Edwin Chiloba, a fashion designer and LGBTQ activist was found dead in Uasin Gishu County, Kenya in January 2023.

The murder drew global condemnation, with LGBT activists linking it to his sexuality. The police arrested five people in connection with the murder, including Chiloba’s long-time friend Jacktone Odhiambo. The National Gay and Lesbian Human Rights Commission released a statement commending the Directorate of Criminal Investigations (DCI) for the swift investigation into the murder. His long-time friend Jacktone Odhiambo was later charged with the murder and is currently on trial, with the last hearing expected to take place on 4 August 2024. The other four suspects were released in February.

In May, Amnesty International and the National Gay and Lesbian Human Rights Commission (NGLHRC) published a report which showed that LGBT asylum seekers and refugees in Kakuma refugee camp routinely suffer hate crimes, violence including rape, and other serious human rights violations. The testimonies collected for the report further point to systemic failures by police in the camp to effectively investigate allegations of hate crimes reported by LGBT persons. A report by Pink News in June suggests that trans women are particularly vulnerable to abuse.

In October, an anti-LGBT rally was organised in Nairobi to protest against the Supreme Court decision to allow the National Gay and Lesbian Human Rights Commission to legally register as an association. Protesters called for the resignation of the Supreme Court judges who handed down the majority decision. Parliamentarians and religious leaders also condemned the judgment.

On 19 December, the Nyeri High Court sentenced Billington Wambui Mwathi to thirty years imprisonment for the murder of Sheila Lumumba, a non-binary lesbian killed in their home in Nyeri County in April 2022. Rights groups expressed disappointment at the sentence, saying it “sends a disconcerting message regarding the value placed on the lives of LGBTIQ+ individuals in … society” and “falls short of the justice Sheila deserves and the severity of the crimes committed.”

2022

Sheila Lumumba, a non-binary lesbian, was found dead in their home in Nyeri County, Kenya, in April 2022. At the time of their murder, LGBT activists and Sheila’s family raised concerns about police failures to adequately investigate the case. The National Gay and Lesbian Human Rights Commission said the case was “not an isolated incident”, but rather part of a “pattern of attacks and violence” against queer people in the country. A man was charged with Sheila’s murder in July 2022.

The case follows similar incidences of violence against the LGBT community, including the murder of Erica Changra, a trans women murdered in Nairobi, and Joash Mosoti, a gay man and activist, who was tortured and strangled to death in Mombasa, both in 2021.  An intersex woman, Rose Mbesa, was also found murdered in Trans Nzoia County in July 2022.

2020

In early January it was reported that dozens of African LGBT refugees in Kenya’s Kakuma refugee camp pleaded with the UN to relocate them, following violent attacks. A Ugandan gay man recalled: “They came in large numbers – much more than us. They beat us with sticks and rods, kicked and punched us and told us to leave. They destroyed our shelters. We cannot go back to the shelters inside the camp. The other refugees know who we are and will kill us” 

In late January, it was reported that a Ugandan trans refugee, Stephen Sebuuma, was attacked in Kakuma Refugee Camp in northern-western Kenya by a group of Sudanese refugees, who stabbed them in the head and cut them on their body. A witness to the incident reported that Stephen was “assaulted with knives and sharp objects that has left [them] bleeding profusely”. It is reportedly the fifth time that they have been attacked by the group, and comes after a string of attacks on LGBT refugees, including a similar attack on a Ugandan trans refugee in November 2019.

2019

Research published in 2019 found that 53% of LGBT people had experienced physical violence in their lifetime, with 33% reporting incidents in the previous year, while 44% had experienced sexual violence (25% in last year). Additionally, 59% had experienced verbal harassment related to their sexual orientation and gender identity (39% in the previous year).

In November, Ugandan LGBT refugees reported being attacked both by Kenyan locals and other refugees at Kakuma Refugee Camp, including a trans man being beaten and having his neck cut.

Also in November, it was reported that Kenya recognised intersex people for the first time in its national census (the first African country to do so).

2018

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 Kakuma Refugee Camp.

2017

A US Department of State 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.

2015

In May, a tabloid newspaper in Kenya began printing lists of what it claimed to be “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.

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. 

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.

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.

2014

During the year 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”.

2013

Protesters against 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 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.

Whilst one report released in December suggested that discriminatory 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. 

2011 

A report by the Kenyan Human Rights Commission detailed many instances of discrimination and violence. The report recounted instances of harassment by state officials, exclusion by families, physical violence, death threats and blackmail.

2023

In June, the Kenyan government and Netflix reportedly signed an agreement that Netflix would remove all LGBT-themed content available in the country.

2021

In September, the Kenyan Film and Classification Board banned the film ‘I Am Samuel’, a documentary about the life of a LGBT man in Kenya. The ban was justified on the basis that the film ‘promoted same-sex marriage as an acceptable way of life’.

2018

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 for ‘promoting lesbianism’.