The case against anal testing

Two weeks ago, a Kenyan High Court upheld the use of anal examinations as ‘proof’ of suspects’ homosexuality. The case began last year when two men were arrested by police officers at a bar near Mombasa under suspicion of being gay. The police obtained a court order for the anal tests, as well as signed consent forms from the two men for the exams and for HIV and hepatitis B tests. The men involved have since claimed that they signed the forms under duress, even though the Director of Public Prosecutions, Keriako Tobiko, insists otherwise. They have further claimed that they were not initially aware of which specific ‘medical examinations’ they were to undergo.

 Anal examinations are effectively a form of sexual assault that no person should have to suffer

After being forced to endure anal exams and HIV and hepatitis B tests, the men, with the help of the National Gay and Lesbian Human Rights Commission (NGLHRC), filed a petition to declare anal testing unconstitutional and prevent the results obtained from being used as evidence against them. Justice Matthew Emukule of Mombasa’s High Court ruled, however, that anal testing is a ‘reasonable and legitimate’ means to prove the crime of ‘unnatural sex’. The judge asserted that there was ‘no violation of human dignity, right to privacy and right to freedom of the petitioners’. Despite some recent progress by the Kenyan LGBT movement, Justice Emukule’s ruling hardly comes as much of a surprise since Kenya, like several other African countries, still maintains a colonial-era law prohibiting ‘carnal knowledge of any person against the order of nature’ and bearing a penalty of up to 14 years’ imprisonment.

Even though the court determined forced anal testing is constitutional, the case remains a seminal one, as it is the first to be lodged against the practice. While anal exams are believed to be rare in Kenya, men suspected of homosexuality in countries like Egypt, Cameroon, Lebanon, Tunisia, Uganda and Zambia are frequently subjected to them. The tests are a truly misguided way to ‘prove’ sexual orientation, and have been discredited internationally, with some human-rights groups pronouncing them a form of torture. I agree with that assessment, and find this recent setback in the Kenyan LGBT and human-rights movements distressing on multiple levels.

Firstly, let’s be clear: anal examinations are not medically sound. The Independent Forensic Expert Group (IFEG) describes an anal examination as ‘a digital examination of the anus using a gloved and lubricated finger of the examiner as well as visual inspection of the anal area and sometimes the insertion of tubes of varying sizes’. The exams presume that there are characteristic signs, such as laxity of the anal sphincter, that correlate with consensual anal intercourse. However, decreased anal-sphincter pressure is a symptom of a range of conditions from irritable bowel syndrome to Parkinson’s disease. Furthermore, not every gay man is a receptive partner in anal sex, nor are all of them sexually active.

Therefore, assuming that a person’s orientation will become immediately apparent after these so-called examinations, no matter how thorough, is preposterous.

Male love: there is more to homosexuality than just anal sex. (Photo: OpenClipArtVectors /pixabay)

Secondly, not only are such tests lacking in logic and scientific backing, they are also impractical. In a country with a medical infrastructure still in need of reinforcing, is it not a waste of resources to dedicate precious staff hours to performing such an archaic and ‘medically worthless’ procedure? Of course, we haven’t even accounted for the hours that police, lawyers and judges spend in the process of acquiring a court order.

And finally, can you even begin to fathom how degrading and dehumanising it is to be forced to undergo such tests? Anal examinations are effectively a form of sexual assault that no person should have to suffer. The security of gay people is already at stake in Kenya. To be subjected to further abuse from the state that is charged with protecting all its citizens is truly heartbreaking. It’s not simply the right to consensual, adult, private intercourse that is at question for gay people in Kenya, and in some 75 other countries. Consider also the rights to family life, fair trial, free expression and association that many gay people are consistently denied. The right to be free from discrimination, violence and torture, the right to work, the right to physical and mental health and the right to life are continuously denied and violated.

Gay people are not just considered second-class citizens, they are presented as noncitizens or even ‘anti-citizens’ – a negative foil against which ‘true’ (read ‘straight’) citizens define themselves

Whatever your current stance on the criminalisation of certain expressions of sexuality and state heterosexism, this case should worry you. This case is not simply a gay issue, or an issue for sexual minorities in Kenya. While the court’s justification of the use of anal exams is a decision that denies the humanity and dignity of all gay individuals in Kenya, it is also a problem of citizenship, of fortifying insider and outsider status. This recent decision completely disregards the autonomy of individuals and is essentially state-sanctioned torture. It assumes that gay people are not citizens of a democracy, and confirms their position as subjects of a terrorist state, vulnerable to (often arbitrary) interrogation and assault at the mercy of institutions ostensibly meant to protect them.

Gay rights are human rights (Photo: torbakhopper/Flickr)

Gay people are not just considered second-class citizens, they are presented as noncitizens or even ‘anti-citizens’ – a negative foil against which ‘true’ (read ‘straight’) citizens define themselves. It may be easy to ignore or even celebrate this recent infringement on gay people’s rights, but let us remember that while a narrow Kenyan nationalism is currently loathe to accept gay people into the fold, that circle of insiders is quite easily tightened.  

Right now it is gay people’s bodily integrity that we collectively have no qualms violating. This is similar to what has been happening with sex workers, who bear the brunt of a violent and neglectful state coupled with a culture of silence. But soon it will become easier to disregard the rights of even more groups based on class, ethnicity, gender and so on.  You may not believe that the state should divest itself of heteronormative biases, but you should at least be critical of which groups are deemed unworthy of their rights as citizens. A state that chooses to apply human rights inconsistently is a state to be wary of. As the elections draw closer, politicians are likely to exacerbate and weaponise popular fear of outsiders – an ill-defined and easily manipulable category – and gay people are often an easy target, but they will not remain the only target.