Webinar: Challenging the Criminalization of “Homosexuality” in Kenya: An Update on Movement Litigation

Thursday, January 30th 2020
9-11 am EST, 3-5 pm CET, 5-7 pm EAT

Join Global Philanthropy Project, UHAI-EASHRI, American Jewish World Service, Wellspring Philanthropic Fund, and Open Society Foundations for an update call on the Kenya Decrim litigation. 

Join movement leaders and litigators- National Gay & Lesbian Human Rights Commission (NGLHRC)  Gay and Lesbian Coalition of Kenya (GALCK) and Nyanza Rift Valley and Western Kenya LGBT Coalition (NYARWEK)-to discuss important updates and key opportunities for grantmakers.

Speakers and Bios

Njeri Gateru is a queer feminist human rights lawyer with seven years working experience working on the protection of minorities in Kenya including asylum seekers, internally displaced persons and LGBTIQ communities. She is founding member and the Executive Director of the National Gay and Lesbian Human Rights Commission in Kenya, an organization that provides legal aid and engages in strategic litigation towards equal rights and protection of LGBTIQ persons in Kenya. NGLHRC has successfully litigated for registration of LGBTIQ organizations and ending forced anal examinations. Currently, the organization is litigating towards decriminalization of homosexuality in Kenya.

Njeri also curates the ‘Because Womxn’ forum – a radical space for conversation and collective design on leadership, security and wellness for LBQ identifying women in Kenya.

Njeri has previously worked with Human Rights Watch in New York, the Red Cross in Kenya and the Hebrew Immigrant Aid Society. She has consulted on and written papers on the lived realities of LBQ women in Kenya, the asylum regime and SOGIE, self-love and body autonomy, as well as activism and the online space.

With a Bachelor’s degree in Law, Njeri is now pursuing a second degree in Gender & Development Studies. She is also a pioneer fellow under President Obama’s Mandela Washington Fellowship, having undergone leadership training in the University of Virginia and the College of William and Mary in the U.S.A.

Daniel Peter Onyango is a 37 year old self-driven individual who is passionate in realizing a sustainable society through offering their skills and expertise to give solutions to the current evolving community problems. Onyango draws his motivation from the plight of sexual and gender marginalized people living in absolute rejection due to their sexual orientation and gender identity which the greater community does not understand. Their personal mission is to build on their experience oi community empowerment services, advocacy and paralegal activities for minority groups with an aim of upbringing an equitable, free, just and fair society where self-acceptance and societal understanding and diversity is upheld.

Onyango is a clinician and currently serving as the Executive Director and the founder of Nyanza Rift Valley Western Kenya LGBTI Network (NYARWEK) that advocates for the rights of LGBTI persons in Western Kenya. Onyango is also a researcher who has led and participated in different research

programs aimed at improving the sexual and reproductive health rights of the key populations in Kenya.

Onyango is the former chair person for the Key Population Consortium for the past four years, an advocacy platform that brings together all the national key population Networks that champion for the rights of the key populations in Kenya. These include the Kenya Sex Worker Alliance (KESWA), Kenya Harm Reduction Network (KHRN), Kenya Network of People who Use Drugs ( KENPUD), Gay and Lesbian Coalition of Kenya (GALCK), Nyanza Rift Valley Western Kenya LGBTI Network (NYARWEK), and the GMT HIV Prevention Network of Kenya (GHPN-Ke).

Onyango sits on the board of management for different organizations and provides technical assistance and expertise on key population management and implementation. These include, Eagles for Life (Kisii),

Kisumu Gender Strategic Plan Implementation 2018-2022 and the Kisumu County Health Task Force. Onyango is also the chair person of Anza Mapema Community Advisory Board that conducts research on MSM in Kisumu, and norm change research in Kenya.

Lorna Dias, a Kenyan national, is a media consultant and social justice activist with 15 years’ experience in policy engagement and advocacy around governance, human rights and HIV. She has been Executive Coordinator of Gay and Lesbian Coalition of Kenya (GALCK) since 2014, and was most previously Technical Officer: Documentation and Guidelines at Kenya’s Ministry of Health National AIDS and STI Control Programme Technical Support Unit (2013-2014); and the Most-at-Risk Populations Programme Coordinator at Kenya’s leading HIV testing and treatment provider, LVCT Health (2008-2013). She has a Bachelor’s in Psychology (Counseling) from University of Nairobi (2007), a Bachelor’s in Education from Kenyatta University (1990) and is an AusAID Australian Leadership Award Fellow (2011). She has contributed to several publications on violence, sexual health and human rights for sexual and gender minorities, sex workers, and people who use drugs, and has supported the development of key national and institutional policies and manuals since 2008. Amongst various professional courses, Lorna has undertaken the USAID/MEASURE Evaluation Leadership Development Program (2013); Financial Management training by MANGO (2016), and the Feminist Leadership, Movement Building and Rights Institute by CREA (2016).

Moderators

Joaninne Nanyange is a feminist human rights lawyer, researcher and writer with over seven years’ experience working with criminalized communities including LGBTIQ persons; Sex Workers; Persons who Use and Inject Drugs; and Women, girls and health service providers facing criminal charges of abortion, in Uganda and Kenya. She currently works as a Program Officer for the American Jewish World Service (AJWS) in Kenya, taking lead on a project designed to shift norms in favor of SOGIE-SC rights and LGBTIQ grant-making.

She has previously worked as the Head of Research and Advocacy and Deputy Executive Director of Human Rights Awareness and Promotion Forum (HRAPF – Uganda) where she took lead on various research and documentation initiatives like the annual documentation of violations suffered by sex workers and LGBTIQ persons in Uganda; creation of partnerships and training of state actors like the Police and the Uganda Human Rights Commission on the rights of LGBTIQ persons; analysis of laws that affect criminalized communities in Uganda; and participating in the building of the legal challenges at the Ugandan Constitutional Court and the East African Court of Justice, that led to the annulment of Uganda’s Anti-Homosexuality Act.

She has consulted on a number of projects for the LGBTIQ community in Uganda and continues online and in-person feminist activism on issues concerning criminalized communities in Uganda.

Alli Jernow is the Program Director of the Sexual Orientation, Gender Identity & Expression Program at Wellspring Philanthropic Fund.  She oversees domestic and international grantmaking in support of LGBTQ human rights, with a focus on intersectionality and movement-building. Prior to joining Wellspring, she ran the Sexual Orientation and Gender Identity Program at the International Commission of Jurists. She was an expert witness in the landmark case of Atala v. Chile before the Inter-American Court of Human Rights and she authored numerous amicus briefs and interventions for cases before the European Court of Human Rights, the UN Human Rights Committee, and national courts.  She is the author of Sexual Orientation, Gender Identity and Justice:  A Comparative Law Casebook. In her earlier career as a civil rights prosecutor for the U.S. Department of Justice, she investigated and prosecuted cases of police brutality, labor trafficking, and hate crimes. She has consulted for OHCHR, ILO and OSCE and worked for civil society organizations in the US, Europe and Africa. 

Background

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.”

Additional Resources