Section 162 and 165 of the Penal Code respectively, state that;
- Any person who has carnal knowledge against the order of nature or permits a male person to have carnal knowledge of him/her against the order of nature is guilty of a felony and is liable for imprisonment for 14 years.
- Any male person who, whether in public or private commits any act of gross indecency with another male person or procures another male person to procure acts of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or any other male person, whether in public or private is guilty of a felony and is liable to imprisonment of five years.
These sections of the Penal code, passed in 1930, were predicated on the Offences Against Persons Act of 1861 of the criminal laws of London, targeting the criminalizing of same sex relations among consenting adults.
The laws which are still currently in effect, infringe on the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community’s basic human rights to; privacy (to have consensual sex in private without intrusion), dignity (to prevent them from inhumane treatment such as public stripping and forced anal testing to prove sexuality), health (prevents them from accessing medical services and information on safe sex), equality and non discrimination, and freedom and security of the person (preventing them access to state protection from the cruelty and exploitation they routinely face, leading to a lot of crimes against them going unreported).
On 18th January 2018, the high court heard a case presented by the National Gay and Human Rights Commission (NGLHRC) to repeal these laws, consequently decriminalizing consensual same sex relations among adults and granting all citizens regardless of their sexual orientation, the right to access basic human rights as provided in the Kenyan Constitution and the African Charter on human and people’s rights.
The vague references to “carnal knowledge against the order of nature” and “gross indecency” are also being challenged.
The petition by NGLHRC has been conflated with the push for marriage equality, sexual acts in public, recruitment and conversion to homosexuality and non-consensual sex. The NGLHRC has been vocal that these are not the matters they are fighting for with their petition by clarifying that the petition challenges the “criminalization of consensual conduct in the Penal code which has informed attacks against people of a particular sexual orientation and gender identity.”
The homophobic argument that the petition is ‘un-African’ was challenged on twitter by a user who goes by the moniker, Nyakabs. Read her thread here.
For further information on the proceedings of the petition by NGLHRC, check out their timeline.
You can also follow the #Repeal162 to stay updated on the proceedings.