The High Court in Kenya fails to legalize gay sex

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The High Court in Kenya has declared sections Section 162 and 165 of the Penal Code are not unconstitutional. The ruling was delivered by a three bench judge consisting of Lady Justice Roselyn Aburili,  Justice Chacha Mwita and Justice John Mativo.

The judges ruled after a petition was filed by Eric Gitari and later various rights groups joined the case. According to the petitioners, the aim of the case was to decriminalize 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 laws in question, i.e. 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 a copy paste of the Offences Against Persons Act of 1861 of the criminal laws of London, England. These laws were meant to criminalize same sex relations among consenting adults.

These laws have been used in Kenya to infringe on the rights of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community’s basic human rights. It is the argument of the petitioners that two sections of the law are discriminatory and contravene various provisions of the Constitution such as right to equality, freedom from discrimination, human dignity, freedom and security of the person and right to privacy.

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