Types of criminalisation

  • Criminalises LGBT people
  • Criminalises sexual activity between males
Summary

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.

Sexual Offence Law Assessment

We’ve also assessed Kenya’s sexual offence laws against international human rights standards. Not only does Kenya criminalise same-sex sexual activity, it also fails to properly protect other vulnerable groups, such as women, children, and people with disability, from sexual offences.

Find out more
Enforcement

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.

Discrimination and Violence

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 Shelia’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 

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.

Other Developments

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’.

NGLHRC v NGO Coordination Board

In 2019, the Kenyan Court of Appeal ruled that the National Gay and Lesbian Human Rights Commission, a local LGBT organisation, should be allowed to officially register as a national NGO. This positive decision affirmed the previous High Court ruling in 2015. An appeal was heard by the Supreme Court in 2021, and a final decision in this nine-year legal battle is expected in 2022.

Read more about the case
References

Local Organisations

Related Countries

Uganda

Uganda criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of life imprisonment.

Tanzania

Tanzania criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of life imprisonment.

Somalia

Somalia criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of death.

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