Sections 162, 163 and 165 of the Penal Code of Kenya make it a crime for consenting adults to “have carnal knowledge against the order of nature” – defined as sodomy — and for consenting adult men to engage in “gross indecency” with each other. As with many other countries around the world that criminalize same-sex sexual activity, Kenya inherited these provisions of law from British colonizers more than 100 years ago. The laws impose lengthy prison sentences. A violation of Section 162 is punishable by up to fourteen years in prison. A violation of Section 165 carries a prison term of five years. These laws are, of course, a severe violation of the dignity, privacy and equality of gay Kenyans. Their mere existence has been used to harass and blackmail the LGBTQ community, and has served to justify stigma, discrimination, and violence. In 2016, Kenyan activists made a collective decision to mount a constitutional challenge. Other activists around the world – in Singapore, Belize, India, Botswana and elsewhere – had embarked on similar challenges, with mixed results.
Kenyan LGBTQ organizations had reason to be cautiously optimistic. The new Constitution of Kenya, adopted in 2010, contained an expansive guarantee of equality and protection from discrimination, with an open-ended list of prohibited grounds of discrimination. There had been some positive court decisions in related cases. For example, in 2015, the National Gay & Lesbian Human Rights Commission (NGLHRC) won a judgment allowing it to register as an NGO. In 2016, NGLHRC and two other organizations – the Gay and Lesbian Coalition of Kenya (GALCK) and Nyanza Rift Valley and Western Kenya LGBT Coalition (NYARWEK) – filed challenges to the constitutional validity of Sections 162 and 165 of the Penal Code before the High Court. The petitions, consolidated by the Court as one case, argued that the criminalization of same-sex conduct violates rights to equality, non-discrimination, human dignity, security, privacy, and health, all protected under the Kenyan Constitution. At first signs were promising. Oral arguments, held in February 2018, went very well. When the Supreme Court of India struck down Article 377 in September 2018, the Kenyan court asked for supplemental briefing.
To support the litigation, the LGBTQ community embarked on an unprecedented public education campaign, gaining attention and support through positive press coverage, posters, and social media. The #LoveIsHuman campaign rolled out strikingly beautiful images on billboards in Nairobi. LGBTQ Kenyans were more visible than ever before.
In May 2019, however, the High Court ruled that these provisions of the Penal Code do not violate the Constitution. The Court found no violations of any constitutional right.
The Court first rejected the claim of discrimination on the basis of sexual orientation. In tortured reasoning, it found that the provision targeting “indecent practices between males” applied to “any male person” – and not just “male persons of a particular sexual orientation.” It summarily rejected petitioners’ claims of discrimination, violence, and harassment because “save for the allegations made in the Petition and the affidavits, no tangible evidence was given to support the allegations.” Similarly, the Court dismissed the relevance of foreign jurisprudence and international human rights instruments, stating that “we should . . . develop our common law in a manner that promotes the values and principles enshrined in our Constitution.” Finally, the Court reasoned that the wording of Article 45 of the Constitution, which provides that “Every adult has the right to marry a person of the opposite sex”, meant that there was no violation of the rights to dignity and privacy. “The Petitioners’ argument that they are not seeking to be allowed to enter into same-sex marriage is, in our view, immaterial, given that if allowed, it will lead to same-sex persons living together as couples. Such relationships, whether in private or not, formal or not, would be in violation of the tenor and spirit of the Constitution.” The limitation of marriage to heterosexual couples was in fact dispositive, according to the Court. “In our view, where the fill of the people is expressed in the Constitution, it represents societal values, which must always be a factor in considering constitutional validity of a particular enactment where such legislation seeks to regulate conduct, private or public.”
In sum, the Court based its conclusion on a strained reading of the criminal provisions at issue and on extreme deference to what it determined was societal values on morality and marriage. Although it acknowledged that sexual orientation could in fact be a basis of prohibited discrimination, it found no such discrimination here.
The three organizations have filed their appeal at the Kenyan Court of Appeal. The Repeal 162 site stated: “You win some, you lose others, but never give up.”