What is Repeal 162?
LGBTQI+ groups in Kenya have petitioned the country’s high court to end what is essentially a legal contradiction that causes the discrimination and justification of violence against the LGBTQI+ community.
This contradiction is in the fact that although Kenya’s constitution changed in 2010 making it one of the most progressive sets of law on the continent the colonial and dated penal code has remained the same.
According to Article 27 of the constitution, every person is equal before the law. Article 27 (4) of the Constitution says 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.
However this does not detail sexual orientation which is instead relegated to Sections 162 (a) and (c) of the Penal code that states any person who has ‘carnal knowledge against the order of nature’ or permits a person to have ‘carnal knowledge against the order of nature’ against them has committed a crime.
‘Carnal knowledge against the order of nature’ is any sexual activity between two or more persons that does not involve the penis penetrating the vagina and carries a jail sentence of up to 14 years.
Additionally Section 165 of the Penal code which only applies to Gay men states that any person who commits an act of ‘gross indecency with another male person’ has committed a crime. ‘Gross indecency’ is any sexual activity between two men that does not involve penetration whether committed in public or in private such as kissing, hugging, holding hands, cuddling or sleeping on the same bed. It carries a sentence of up to 5 years in prison.
Aside from the obvious contradiction in the law, discrimination based on sexuality has lead 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 base illegality of the victims sexuality.
“They told me not to go to the police because they criminalize lesbians and wouldn’t take my case seriously,” Kenyan victim Gatura Gatura told BuzzFeed News about her personal hate crime incident.
The case thus far
On 18th January 2018, the National Gay and Human Rights Commission (NGLHRC) the Gay and Lesbian Coalition of Kenya (GALCK) and Nyanza, Rift Valley and Western Kenya (NYARWEK) network presented their case to the high court to repeal the pertinent sections of the penal code, which would mean decriminalizing consensual same sex relations among adults and granting all citizens regardless of their sexual orientation, the right to access basic human rights as provided in the Kenyan Constitution and the African Charter on human and people’s rights.
The judgement of #Repeal162 was scheduled for today the 22nd February 2019 and was set to be a historic day.
— Shailja Patel (@shailjapatel) February 22, 2019
Unfortunately the long awaited verdict has not been issued as planned. The bench told reporters in attendance that they have not ‘finalised’ their decision citing “Administrative challenges and full dockets” for the delay.
The judge who addressed the court stated that they, “Are still planning when to regroup… The judges have asked me to ask you to give us up to May.”
The ruling of #repeal162 has been postponed 😭😭😭. The bench has not finalized making their decision.
To say we are disappointed would be an understatement
— The Commission (@NGLHRC) February 22, 2019
The judge, speaking in behalf of the thre ejudge bench, has given 24th of May 2019 as the day they'll issue a ruling
— The Commission (@NGLHRC) February 22, 2019
The responses to the postponement have been a mixed bag. Many are disappointed whilst others are calling for patience and forbearance. Either way an entire community continues to wait with bated breathe for the freedom to love.
#Repeal162 we are negotiating to live lives free of violence for this and future generations …. what is against our culture is violently policing who we love…our right to love casts no shade to your right to love…. #LGBTQ rights are in fact human rights pic.twitter.com/VqgQn5PlXh
— Mel (@Sikilizaspeaks) February 22, 2019
"Aki imagine, we were busy.
It has only been three years.
Ah, si you just wait.
It's only 3 more months before we tell you IF this one little bit of humanity may be afforded to you.
(Sending love & light to those whose hearts are breaking)#Repeal162
— #Repeal162 (@tweetmoraa) February 22, 2019
Thinking about all the people I saw on social media saying they could hardly sleep last night waiting for this day, and the exhaustion of sustained anticipation; this case started in 2016.
Anyway, see you in three months. #Repeal162
— Tamerra Griffin (@tamerra_nikol) February 22, 2019
This thing where marginalized groups are asked for civility by the privileged in their unconstitutional unhumaning.
Asked to think of ‘bigger problems’ that are more important.
Be more patient.
— #Repeal162 🇰🇪🇰🇪 (@NonieMG) February 22, 2019
The postponement of the #Repeal162 ruling is cruel to the LGBTQ+ community. All the work & anxiety that has led to this day & now they have to wait 3 more anxiety-filled months.
In other matters, aren't there rules on by when parties to a case are to be informed of postponement?
— Negritude ✊🏿 (@tjjullu) February 22, 2019