The Kenyan High Court on May 24 rejected a petition to declare sections 162 (a) and (c) and section 165 of the Penal Code unconstitutional, a decision which widely criticised by many people in Kenya and across the continent. The petition argued that the sections have led to discrimination and the justification of violence against the LGBTQI+ community or persons presenting as such. The three-judge bench ruled that the laws do not in any way violate the rights of LGBTQ people in Kenya.
With the ruling, Kenya’s Penal Code, which criminalises same-sex activity, effectively remained intact. In section 162, “Any person who: Has carnal knowledge of any person against the order of nature; or permits a male person to have carnal knowledge of him or her against the order of nature.” Section 165 states that: “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 commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.”
The unanimous decision of the three-judge bench, which was read out by Judge Charles Mwita noted that:
“the impugned provisions of the Penal Code are not vague and disclose an offence. The petitioners have failed to prove that the provisions are discriminatory. There is no evidence to show that the petitioners were discriminated and their rights violated as they sought healthcare”.
The decision was described by many in the civil society and public as “sad”, retrogressive and “a blow for human rights”.