Last week was a harsh week for LGBT Kenyans.
Kenya’s high court upheld colonial-era anti-sodomy laws and the community lost Binyavanga Wainaina, a beloved, award-winning writer and gay activist.
“It’s a dark day not just for Kenya, but also for Africa,” Andrew Maina, program coordinator at HIVOS, told Reuters.
He hoped Kenya would set a precedent and be a beacon of hope for other African countries that have similar anti-sodomy laws.
The court ruling came a few days after Wainaina’s death on May 21.
NPR reported that Wainaina, who came out as being HIV-positive in 2016, died of an illness. Reports are unclear if it was an illness due to HIV. He was 48.
Wainaina came out as gay in 2014 in a lost chapter of his memoir, “I Am a Homosexual, Mum.” He published the essay largely due to Kenya’s criminalization of LGBT people.
“I felt this is one of the most successfully, put-together and honest pieces I’ve ever written,” he told NPR at the time.
Court case
Presiding Judge Roselyn Aburili declared that Kenya’s anti-sodomy laws didn’t violate the country’s constitution, arguing that there was “no conclusive scientific proof that LGBTQ people are born that way.”
In a statement, she said that decriminalizing homosexuality would “open the door for same-sex unions,” an argument that has been made mostly by Christian and Muslim opponents of LGBT rights.
The ruling came the same day an estimated 300 Taiwanese same-sex couples tied the knot in a mass wedding celebrating the country becoming the first Asian nation to legalize same-sex marriage.
Eric Gitari, a gay activist and former president of the National Gay and Lesbian Human Rights Commission who challenged Kenya’s anti-sodomy laws petitioning the courts three years ago, called the ruling “very biased” and vowed to appeal the decision.
In 2016, Gitari filed a case against Kenya’s anti-sodomy laws, arguing that they violated the country’s 2010 constitution guaranteeing equality, dignity, and privacy for all citizens.
Around the same time, two other organizations, the Gay and Lesbian Coalition of Kenya and the Nyanza, Rift Valley and Western Kenya Network, and individual petitioners filed a case citing similar issues.
The cases were consolidated by the high court and referred to a three-judge panel.
LGBT and human rights advocates were hopeful Kenya would strike down the law like India did in September 2018, but it didn’t happen.
Under Kenya’s laws, LGBT people, mostly gay men, face 14 years in jail if convicted under penal code articles 162 and 165.
The laws are rarely enforced, according to Human Rights Watch senior LGBT researcher Neela Ghoshal. There have only been two prosecutions against four people under article 162 within the past 10 years, she noted in a statement from the organization responding to the court’s May 24 ruling.
The laws’ existence allow for an environment of homophobia and persecution, she said.
The Kenyan government reported 534 people were arrested for same-sex relationships between 2013 and 2017. Kenya’s NGLHRC, one of the petitioners in the case, recorded more than 1,500 attacks against LGBT people since 2014, reported Devdiscourse.
Homophobia in widespread in Kenya.
Last year, Kenyan President Uhuru Kenyatta told CNN’s Christiane Amanpour that LGBT rights were not of “major importance” to Kenyans.
“This is not acceptable, this is not agreeable,” he said. “It is not human rights issue as you want to put it, this is an issue of society; our own culture as a people irregardless of which community you come from.”
Anti-gay supporter the Reverend Tom Otieno of Lavington United Church stated that Kenya will never accept LGBT people.
“We are not about to accept homosexuality and we will not accept it. Even if the courts try to tinker with it, we will go back to court,” he told CNN.
In a 2018 report entitled “Polarized Progress: Social Acceptance of LGBT People in 141 Countries, 1981-2014,” the Williams Institute, an LGBT think tank at UCLA School of Law, identified Kenya as one of the least accepting countries and that conditions were worsening.
The anti-sodomy laws violate Kenya’s international agreements to uphold human rights, noted Ghoshal.
British Prime Minister Theresa May, who will step down next week, expressed regret for Britain’s colonial-era laws last year. She urged Commonwealth nations to decriminalize homosexuality.
LGBT Kenyans are bracing for discrimination to continue due to the court’s decision.
NGLHRC director Njeri Gateru told HRW that she believes eventually justice will prevail in Kenya, but “in the meantime, ordinary LGBT Kenyans will continue to pay the price for the state’s indifference to inequality.”
“For a LGBT+ person in Kenya, it means we will still have to live in fear in the shadows, still be discriminated and insulted, still have to look over our shoulder whenever we go out and still have to move from home to home due to evictions by homophobic landlords,” said Maina.
A blow to Africa’s progress
The court’s ruling has broader implications beyond Kenya’s borders.
“It’s a blow for human rights in Kenya and sends a dangerous signal to the rest of the Commonwealth, where many citizens continue to be criminalized simply because of their sexual orientation or gender identity,” Tea Braun, director of Human Dignity Trust, told Reuters.
The New York Times reported that out of 55 African countries, 38 have criminalized same-sex relationships. Homosexuality is punishable by death in Somalia and South Sudan. Like Kenya, Nigeria sentences LGBT people to 14-year prison terms, while the maximum sentence in Tanzania is 30 years.
These laws go against recent progress made on LGBT rights in Africa and in other Commonwealth nations, including Kenya. Courts in Angola, Belize, Cameroon, India, Lesotho, Mozambique, Namibia, São Tomé and Cape Verde, Seychelles, Trinidad and Tobago, and Uganda have ruled positively from decriminalization of homosexuality to legal recognition of organizations to legally recognizing transgender rights.
There are cases still pending in Africa, such as Botswana, where decriminalizing homosexuality is being considered.
Gateru said Kenya “missed an opportunity to take a clear stance against discrimination.”
Published by the Bay Area Reporter.
Got international LGBT news tips? Call or send them to Heather Cassell at WhatsApp: 415-517-7239, or Skype: heather.cassell or oitwnews@gmail.com.
