Kenya’s Bid for LGBT Equality Hits a Wall

Judges declined to overturn colonial-era laws criminalizing same-sex relationships. Human Rights Watch’s Neela Ghoshal says it’s a setback with regional repercussions.

A person wearing a rainbow flag leaves the Milimani High Court in Nairobi after Kenya’s high court, in a much-awaited verdict, refused to scrap laws criminalizing same-sex relationships, on May 24.
A person wearing a rainbow flag leaves the Milimani High Court in Nairobi after Kenya’s high court, in a much-awaited verdict, refused to scrap laws criminalizing same-sex relationships, on May 24. TONY KARUMBA/AFP/Getty Images

A three-year legal challenge from Kenya’s LGBT community that aimed to overturn sections of the country’s legal code that criminalize LGBT relationships has faltered. In Nairobi, a panel of judges determined on May 24 that the court would uphold the laws, which stem from a generic colonial-era legal template found across many Commonwealth countries that banned “carnal knowledge against nature.” Although prosecutions under the law are rare, they underwrite violence and discrimination, and they have been a key target for the country’s LGBT activists for years.

Last year, India made the historic move to dismantle its own set of colonial-era anti-LGBT laws. The Supreme Court cited their incompatibility with the protections wrapped up in the country’s constitution. The Kenyan decision then comes as a harsh reminder that LGBT Kenyans’ rights and full inclusion in society are still up for debate. And, as other African countries such as Botswana approach their own moments of reckoning over the legal status of LGBT people within their borders, this decision may have an outsized reach.

Foreign Policy spoke to Neela Ghoshal, a senior LGBT rights researcher at Human Rights Watch, about the fallout from the decision.

Foreign Policy: Tell me about what homophobia and transphobia look like in Kenya at the moment, and how this law functions in relation to those forces.

Neela Ghoshal: Although people are not regularly arrested under these laws, they contribute to a number of other abuses. We’ve found that when people are subjected to violence on the basis of their sexual orientation or gender identity, they’re extremely reluctant to report to the police, and almost nobody ever does. And in some cases when they have gone to the police they have been met with the same homophobia and transphobia from the police that they just saw from their assailants.

In some cases the police behavior has been very clearly based on criminalization of LGBT relationships being built into Kenyan law. The police have said, well, if you were “normal” you wouldn’t have been beaten up. If you want to address violence against LGBT people in Kenya, you have to tackle the roots of it, and one of those is that state-sponsored institutionalized discrimination is written into the penal code.

FP: How do you react to how the judges made the case to uphold these colonial-era laws?

NG: The judges put together an argument with absolutely no basis. I mean, it was astonishing. First of all, the conclusion that the law is not discriminatory because it doesn’t specifically name LGBT people—that just goes against long-standing legal principles and an understanding that laws can be discriminatory in the way that they are applied or even discriminatory in their intent without explicitly stating their intent.

FP: Yes, the court seemed to indicate that because the law covers all Kenyans that somehow there’s no question that the dignity of LGBT Kenyans is up for debate … as long as they’re not LGBT Kenyans. It felt like a circuitous loop. What do you make of the judge’s framing of their decision to uphold Sections 162 and 165?

NG: Part of the reason why this logic felt so twisted was that it seemed to be saying, “You’re not discriminated against, actually, and therefore we’re going to keep discriminating against you.” Or, “You have your constitutional rights, and therefore we’re going to deprive you of your constitutional rights.” I think in a sense the judges were trying to have it both ways. They certainly wanted to convey that they were not engaging in any sort of discriminatory politics in this decision. But it’s quite clear that that is the impact and the intent.

FP: Some of those who opposed overturning the ban appear to be advancing a narrative that almost celebrates autonomy, in other words: Kenyans won’t be influenced by the affirmation of LGBT people and the decriminalization of their relationships elsewhere. What do you make of that sentiment?

NG: There will always be people who claim that that LGBT identities are a foreign imposition. As a representative of an international NGO, I would say that we have been involved and engaged in this issue in support of LGBT Kenyans who are undertaking extremely courageous moves to ensure that their own human rights are upheld. The question at stake is whether Kenya’s constitutional rights are being upheld. And I think unfortunately in this ruling they weren’t.

FP: Tell me about how the Kenyan constitution dovetails with this ruling when it comes to privacy and dignity.

NG: Kenya’s constitution is excellent in that regard. It has very clear provisions on privacy and dignity. But the court claimed that those rights needed to be understood in the context of Article 45, which states that marriage is between people of the opposite sex. So essentially I interpret this as the court saying that if you are not a married heterosexual couple, your right to privacy is compromised. And that is a really astonishing claim. I mean, that essentially suggests that if you’re married and heterosexual, then the state doesn’t have any business in your bedroom, but if you are not married or not heterosexual, then the state can invade your privacy in any way that it likes.

FP: There are 33 countries in Africa that criminalize same-sex relationships. How do you expect this to ripple beyond Kenya’s borders?

NG: We are all afraid that this could have a negative impact. To be honest, I was optimistic about this ruling. I had expected that it would come out the other way, because I thought that the courts in Kenya were independent enough, and the judges were progressive minded enough, to take into consideration the real privacy and discrimination issues at stake here. And I had hoped that it would have a really positive effect around the region.

Angola just decriminalized same-sex conduct through a revision to its penal code that came from parliament early this year. So there was a sense that things were going in the right direction in Africa. And I think that definitely feels like a setback that will have regional repercussions.

When the India ruling happened last fall, and Section 377 was invalidated by the courts, that ruling was submitted into evidence in the Kenyan case. The judges essentially disregarded it. But regional precedent matters, and courts do look—you know, in the region—do look at international rulings.

So we have a case coming up in Botswana next month that is essentially the same as this case. It’s also a petition that has been filed by activists challenging the constitutionality of provisions that are almost identical language. And we had, of course, hoped that this would have a positive impact on the Botswana ruling. Now all we can hope is that it doesn’t have a negative impact.

FP: Kenya lost one of its most high-profile writers and LGBT voices on May 21, Binyavanga Wainaina, who died at the age of 48. What do you make of this double blow to the Kenyan LGBT community, and how should the world understand what he gave to this movement?

NG: I think people’s hearts have been broken in Kenya on multiple occasions this week. When Binyavanga died, you know a lot of people were out there saying, you know, we wish he was with us, particularly for this groundbreaking ruling that they had hoped would be positive. The reality is that Binyavanga recognized that when you embark on a struggle like this, it is about the long term. What Binyavanga did for the movement, which was to take the risk of coming out and to make clear to Kenyans that people they have embraced as part of them—as representatives of Kenya, as representative of Kenyan culture—can be LGBT people. That is not lost. And that is going to continue to contribute to change, which may not come as fast as we would like, but it will come.

This conversation has been condensed and edited for publication. 

Jefcoate O'Donnell is an editorial fellow at Foreign Policy. Twitter: @brjodonnell

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