Statement on court decision that affirmed the constitutionality of laws criminalising homosexual acts

24 May 2019

Amnesty International Kenya is concerned by the 3-judge bench High Court decision that affirmed the constitutionality of laws criminalising consensual sexual contact between persons of the same sex; and, sexual contact what is termed as ‘against the order of nature’.

The decision was precipitated by a constitutional petition challenging the constitutionality of Sections 162 and 165 of the Penal Code filed by the National Gay and Lesbian Human Rights Commission (NGLHRC) and two grassroots organizations in Kenya.

“We oppose discrimination based on sex, sexual orientation, gender identity, race, religion, disability, class, caste, ethnic origin, national origin or age” said Irũngũ Houghton, Amnesty International Kenya’s Executive Director.

Amnesty International Kenya supports LGBTQ rights because all human rights are indivisible and interdependent, meaning that all rights – political, civil, social, cultural and economic – are equal in importance and none can be fully enjoyed without the others. Upholding them can help save lives, reduce risk of social and economic exclusion as well as enable everyone to express themselves freely without fear and prejudice.

“Kenya is unfortunately among 32 countries that have held on to colonial laws that criminalize homosexual acts. Because of this, gays, lesbians and bisexuals in Kenya often face stigmatization, discrimination, threats, bullying and physical attacks from members of the community and state actors due to their sexual orientation, with little or no protection from law enforcers”, added, Irũngũ Houghton

Kenyan society and courts have increasingly become more progressive, especially since the promulgation of the Constitution of Kenya 2010. We note that over the last 5 years, the courts have affirmed LGBTQ persons’ right to human dignity and privacy; freedom of association; freedom of artistic expression and freedom of expression through the landmark decisions that determined that invasive anal testing for suspected gay men was unconstitutional; that the refusal to register NGLHRC was discriminatory; and, by lifting the ban on a lesbian themed movie “Rafiki” and allowing it to be aired in Kenyan cinemas.

In the recent past, Angola, India have decriminalized penal provisions criminalizing same-sex sexual contact through legislation and court action respectively. We call on parliament to repeal these laws to ensure that all people in Kenya fully benefit from the constitutional and human rights safeguards in the 2010 constitution and international law that Kenya is party to.

This decision is a major setback to the human rights discourse, especially with regards to equality and nondiscrimination – we, therefore, stand with the petitioners and the LGBTQ community in Kenya.

For more information and media interviews, kindly contact Joanne Kuria via +254762242670 or [email protected]