August 21, 2019

Kenya’s High Court Upholds Ban on Gay Sex

Kenya’s High Court Upholds Ban on Gay Sex


NAIROBI, Kenya — Kenya’s High Court on Friday upheld laws that criminalize gay sex, declining to join the handful of former British possessions that have recently abolished a prohibition imposed by Britain during the colonial era.

The ruling keeps Kenya aligned with most of Africa, where anti-gay laws and conservative cultural mores remain prevalent and where, in addition to the threat of prosecution, discrimination and violence against lesbian, gay, bisexual and transgender people are common.

More than 70 countries criminalize gay sex, most of them Muslim countries or former British colonies, according to advocacy groups.

In the 19th century, British colonial rulers — far more than their counterparts from other European countries — outlawed same-sex relations in dozens of colonies on multiple continents. After gaining independence, most of those nations kept the bans in place, often using a version of the Victorian language the British left behind.

At a meeting last year of Commonwealth heads of state, Prime Minister Theresa May said Britain regretted that history, and urged the other nations to change their laws. Britain did not repeal its own law against homosexual acts in England and Wales until 1967, and later in Scotland and Northern Ireland; in the United States, gay sex was illegal in 13 states until a Supreme Court ruling in 2003.

The highest courts of three other nations that were once parts of the British Empire have recently struck down such laws: Belize in 2016, Trinidad and Tobago in April 2017, and India last September. A court case in Botswana is pending.

But other former British possessions, particularly Uganda, have grown harsher in pursuing discrimination and punishment.

The sections of Kenya’s Penal Code upheld by the ruling issued on Friday make it a felony to have “carnal knowledge of any person against the order of nature” or to commit “gross indecency.” The maximum sentences for various offenses range from five to 21 years in prison.

The “carnal knowledge” section covers anal and oral intercourse, and in theory applies regardless of the gender of the people involved. Gay rights advocates say that it is used primarily against gay men. “Gross indecency” applies specifically to acts between males.

Whatever the courts may say, anti-gay views are strongly held by many people in Kenya, including Raphael Kimeu, 56, a waiter at a Nairobi restaurant.

Tolerating homosexuality “is tantamount to showing disrespect to the same God who created us,” he said, cursing and shaking his head.

Yvette Cheptoo, 18, a student in Nairobi, said that the ruling would have little effect on how gay people are viewed.

“The discrimination will still be there because being homosexual in our African traditions is unacceptable,” she said. “Most churches and religions in Africa are against it.”

But she said the rights of all people should be recognized, no matter what their sexual orientation or gender identity, reflecting the same kind of generational divide in attitudes seen in many parts of the world.

“Since these are our friends and loved ones, I’d like to see them enjoy equal rights just like any other Kenyan,” she said, adding that she considers Kenya a country that embraces equality for all.

A coalition of Kenyan L.G.B.T. activists that has been spearheading the case, along with local lawyers, argues that the Kenyan Constitution guarantees that the “state shall not discriminate directly or indirectly against any person on any ground,” including sex.

But advocates claim the state and some Kenyans have engaged in systematic discrimination, stigma and violence.

David Kuria, a human rights researcher who was among the petitioners, said he wanted the judges to strike down the laws so that “L.G.B.T. persons will be able to live without fear of violence, or the fear of being fired from their workplace.”



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