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, with 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 exams 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, however it is currently being appealed.

2023

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.

In April, Peter Kaluma, Member of Parliament for the opposition party Orange Democratic Movement, proposed a bill to Parliament to further criminalise LGBT people in Kenya. The Family Protection Bill 2023 seeks to penalise consensual same-sex sexual activity by a minimum of 10 years in prison and a maximum of 50 years, and to introduce the death penalty for ”aggravated homosexuality”, defined as “engaging in homosexual acts with a minor or disabled person and transmitting a terminal disease through sexual means.”

The proposed bill also aims to ban any activity “that promotes homosexuality”, such as wearing flags or emblems of the LGBT community. The bill would prohibit same-sex marriage, as well as ”sex reassignment prescriptions or procedures that are intended to create a sex other than the biological sex of the person observed and assigned to the person at birth”. The latter would not apply to intersex individuals.

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 judgment, 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. MP Peter Kaluma however filed a legal challenge against the Supreme Court decision. In September, the 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.”

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 an LGBT NGO was unconstitutional (see further below). The final decision is expected sometime in 2022.

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 delays 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 criminalising provisions 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 (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.

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.

2012

In July, Monica Mbaru, a prominent LGBT human rights defender, was appointed as a judge on the Kenyan Industrial Court.

2020

The US 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 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.

2023

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

2022

Sheila Lumumba, a non-binary lesbian, was found dead in their home in Nyeri County, Kenya, in April 2022. At the time of her 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. The BBC produced a short documentary on the mistreatment experienced by LGBT refugees in Kenya.

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

The 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

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.

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.

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 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 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 details many instances of discrimination and violence. The report recounts instances of harassment by state officials, exclusion by families, physical violence, death threats and blackmail.

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’.