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An Uncertain Hour: LGBTQ+ Rights In Kenya

As part of the build-up to June’s Safer To Be Me Symposium, we are proud to be sharing our Safer To Be Me: Global Voices blog series, showcasing LGBTQ+ themes from around the globe, written by ReportOUT volunteers.

This week’s blog comes from a ReportOUT Researcher, Abel from Ethiopia, who assesses the progress and setbacks for the Kenyan LGBTQ+ community in both legislation and broader society.

In recent years, as LGBTQI rights have advanced within the UN system, the African Group has acted with some uniformity in opposing these advances, including by leading the charge against the appointment of an independent expert on sexual orientation and gender identity. However, this prior uniformity has given way to a more nuanced and varied approach. Many countries in Africa have poor reputations when it comes to LGBTQI rights. The anthropologist Zethu Matebeni has parodied this uniformly gloomy view in a piece entitled “How Not to Write About Queer South Africa”. Thesame volume also highlights the ways in which sexual and gender minorities are marginalized by “African political, religious, and traditional leaders,” of the 67 countries that criminalize same-sex relations, 33 are in Africa.

In most cases, these laws are remnants of colonial rule, and the vague wording of these prohibitions, such as “carnal knowledge against the order of nature” resonates with the decorum of that era. Although the examples are few, there has been some progress over the last year on the protection of LGBTQI rights in Africa.

‘Largely Considered to be Taboo’

Lesbian, gay, bisexual, and transgender (LGBT) persons in Kenya face legal challenges not experienced by non-LGBT residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 14 years imprisonment, and any sexual practices between males (termed "gross indecency") are a felony under section 165 of the same statute, punishable by 5 years imprisonment. While female same-sex-sexual activity is not explicitly prohibited by law, lesbians, bisexual women, and transgender people are not recognized in the Kenyan Constitution and are discriminated against, covertly. They also frequently undergo corrective rape practices by heterosexual men..

The freedom of expression on Kenyan LGBTI rights is best exemplified by the banning of documentary film I Am Samue, on grounds that the film promoted same-sex marriage. The film follows a classic theme — the relationship between parents and their son, as he navigates a budding romance with another man in a rural setting. This ban came hot on the heels of the 2020 ban by the same board of the narrative film Rafiki, a love story about two young women whose fathers are political opponents. Rafiki was briefly unbanned and broadcast for a week in Kenya, to meet a requirement for it to be considered for an award at the Cannes Film Festival.

Kenyan society is highly conservative, and a large majority of people hold negative views of LGBTI people. Homosexuality is "largely considered to be taboo and repugnant to cultural values and morality" of Kenya.

“If homophobes were looking to target people, if the police were looking to arrest people, if anti-gay youths were looking to attack some teens they assume are gay, they now have a face and a name”.

The recent murder of Edwin Chiluba, an LGBTI activist and fashion designer is one of the horrific indicators of the targeting of LGBTIQ+ life by conservative society members. Discrimination and Defiance

Despite this hostile backdrop, public support has slowly been growing and various protagonist organizations are working to protect and improve LGBTI rights. Key protagonists advocating for rights protection for sexual orientation and gender identity minorities. These have been in the forefront of advocacy, campaigns, and litigation for the protection of LGBTI rights and have been supported by progressive civil society actors such as Kenya Human Rights Commission.

Due to the work of those protagonist organizations, Kenya has seen a number of significant legal challenges to criminalizing provisions and the treatment of LGBTI people and organizations in recent years. These have included a case that established that the use of forced anal exams is illegal and a case that upheld the right of LGBT people to form and register organizations, including the following progress indications. 2023 The Kenyan Supreme Court ruled in favour of an NGO (National Gay and Lesbian Human Rights Commission (NGLHRC)) with the word ‘gay’ or ‘lesbian’ being allowed to register.

2021, in November, the Supreme Court heard an appeal against the 2019 Court of Appeal decision which found that the NGO Coordination Board’s refusal to register the NGLHRC was unconstitutional.

2019 The court of appeal upheld (by a majority of 3 to 2) a 2015 High Court judgment that the NGO Coordination Board’s refusal was in violation of the right to freedom of association (Article 36) and equality before the law/freedom from discrimination (Article 27) under the Kenyan Constitution.”

2018 in March, Kenya’s Court of Appeal ruled that the use of forced anal exams to determine whether gay men engaged in sex is illegal.

2016 in April, NGLHRC filed a petition (no. 150 of 2016) challenging the constitutionality of the criminalizing provisions in the Penal Code.

2015 in April, the High Court in Kenya held that the refusal by the NGO Coordination Board to register an LGBT rights NGO (NGLHRC), on the basis that same-sex activity is criminalized in the East African country, was unconstitutional. The Board was accordingly ordered to register the NGO.

2014 in July, the High Court of Kenya ordered the NGO Coordination Board to register a transgender advocacy group, the Transgender Education and Advocacy (TEA), finding that the Board had discriminated against the TEA and denied the organization its right to freedom of association on the basis of gender or sex, which was unconstitutional, and its inaction in refusing to register the TEA constituted an unreasonable exercise of discretion. At the same year In December, the High Court of Kenya ordered the government to issue a birth certificate to a five-year-old intersex child after hospital staff put a question mark next to the box designating gender on a form to record the 2009 birth of the baby.

2012 In July, Monica Mbaru, a prominent LGBT human rights defender, was appointed as a judge on the Kenyan Industrial Court.

These developments often go unnoticed in the context of some of the horrific prejudice and threat our communities still face but represent a hopeful recent trend of democratization and the new transformative Constitution of 2010.

They also demonstrate the importance of litigation as an important tool in the fight for legal recognition and equal treatment of LGBTI+ persons in Kenya.

That said, activists need to carefully consider the use of strategic litigation. It should be considered in tandem with other strategies such as sustained advocacy and public education on sexual minority rights, and to seek to do so in collaboration with mainstream human rights organizations to LGBTI rights to equality, free from discrimination, autonomy, and bodily integrity. The journey for true equality remains long and uncertain but we remain determined to fight for our rights.


Quick links

Santos, E. (2022, June 28). [OPINION] Why climate justice is queer justice. RAPPLER. [OPINION] Why climate justice is queer justice

Behal, A. (2021, January 11). How climate change is affecting the LGBTQIA+ community. How climate change is affecting the LGBTQIA+ community

Abel’s blog is part of ReportOUT’s Safer To Be Me: Global Voices series, in support of the Safer To Be Me Symposium, a joint ReportOUT-University of Sunderland project, which will take place on 22nd June 2023 at Sunderland University in the North East of England.

The symposium will create a safe space where some of the most important issues facing international LGBTQI+ human rights can be explored and discussed in great detail, as well as encouraging a call to action where all involved can identify meaningful ways to be proactive and make a powerful impact.

To find out more, visit our website

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