What was set to be a pinnacle ruling towards the social freedoms of the LGBTQI+ community ended in dejection. After years of petitioning against laws that violate the right to privacy, the right to freedom of expression, the right to health, the right to human dignity and the right to freedom from discrimination of sexual minorities, the Kenyan High Court has destroyed the hope of equal freedom for all.
The initial judgment in what has been dubbed #Repeal162 (as per the relevant sections), which had been scheduled for 22 February 2019, was postponed to 24 May 2019 when the judge addressed the court, stating that they were “still planning when to regroup… The judges have asked me to ask you to give us up to May.”
Fast forward to the new ruling date and the three judge bench, comprising of Justices Chacha Mwita, John Mativo and Roselyne Aburili, dismisses the case, saying cultural values must be respected.
“We are unable to agree with the petitioners that the views of Kenyans should be ignored where the will of the people is expressed in the Constitution,” they said.
The judges said the contentious sections of the law do not discriminate against any particular groups of persons or people of particular sexual orientations.
“It is our finding that the petitioners have not shown the basis upon which they were discriminated against. Cases are determined by discharging the burden of proof and the person complaining must satisfy the burden by tabling clear violations,” the judges said.
They added that the petitioners did not give evidence that they were denied medical attention, raising “general allegations” instead.
“A party alleging violation must demonstrate what rights have been violated. It is not sufficient to allege in general terms. We are of the view that the impugned sections do not exclusively apply to the petitioners.”
While reading the unanimous judgment, Justice Aburili also said, “Acknowledging cohabitation among people of the same sex (where they would ostensibly be able to have same-sex intercourse) would indirectly open the door for unions (marriages) of people of the same sex.”
The judges went on to caution, “Any interpretation by the petitioners should not exclude our cultural values and principles. The Constitution is a point of reference to any ruling or decision by the court.”
Missing the mark
Following the fallout that ensued from the ruling, it was clear that the judges and public missed the mark. Whereas the petitioners were working towards upholding universal constitutional rights, the public and judges saw it as way to decriminalise and validate same-sex relationships.
The court seemed to indicate that because the law covers all Kenyans, then there is no question that the dignity of LGBTQI+ Kenyans is up for debate – as long as they are not LGBTQI+ Kenyans, in what can only be described as a continuous, unbreakable, self-serving loop.
Neela Ghoshal, a senior LGBTQI+ rights researcher at Human Rights Watch, told Foreign Policy, “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 LGBTQI+ 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.”
“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.”
Universal rights mean that “the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth”, as is unequivocally stated in Article 27 of the Kenyan Constitution.
The penal code sections 162 (a), (c) and section 165, however, allows for discrimination based on sexuality. Repealing these sections would not mean an acceptance of anything and everything, or the advent of “the gay agenda”, it would simply mean that all Kenyan citizens could live free of fear and exploitation.
— Daniel Ominde Okoth (@IamOminde) May 24, 2019
Top 3 reasons why the High Court MUST #Repeal162
1. It is a colonial relic. The provision belongs to history. It is 2019!
2. The "law" is not law – too vague! What does "carnal knowledge against order of nature mean"? Who's nature?
3. It is about privacy. It is about DIGNITY. pic.twitter.com/ZEiZnw6au4
— waikwa wanyoike (@waikwawanyoike) May 24, 2019
As petitioners regroup and chart a course forward – which we hope they are doing – it is important to reflect on why #Repeal162 is paramount for the safety of sexual minorities. The root lies in this state-sponsored, institutionalised discrimination against them.
The lack of equality and protection of the rights of sexual minorities has led to rampant cases of cyber-bullying, blackmail, extortion, verbal assault, physical assault, eviction, unlawful termination and “corrective” rape. These cases are rarely reported, let alone prosecuted, due to the basic “illegality” of the victims’ sexuality. Additionally, the LGBTQI+ community does not receive proper sexual health intervention because they cannot disclose their sexuality or, in some cases, are treated poorly when they do.
Until these sections are repealed, violence against the LGBTQI+ community or persons perceived to be of the community, will continue. One thing Kenyans must remember is the burden of proof has been placed by the court on the victim.
This means that all Kenyans are in jeopardy of having their rights violated if they fit the description detailed in these penal code sections: “A party alleging violation must demonstrate what rights have been violated.” This has disturbing implications for each and every Kenyan.
All Kenyans are in jeopardy of having their rights violated if they fit the description detailed in these penal code sections.