#Repeal162

Andrew Maina, March 28, 2018

The promulgation of the constitution of Kenya 2010 was received with a lot of excitement and expectations from all Kenyans. It was seen to address all problems experienced in the preceding eras that were largely dictatorial where the government did not allow the majority to speak with the minorities silenced. Furthermore, the constitution brought with it an expanded bill of rights which for many Kenyans validated their right to freedom of expression, access to information, freedom of association, freedom of assembly, demonstration, picketing and petition. However just like when Kenyans attained their independence in 1963 this excitement was short lived with many Kenyans disillusioned with new developments such as an expanded government, huge wage bill and flawed elections that last year threatened to spilt Kenya into two countries.

Constitutions developed outside a crisis eventually end up not holistically addressing gross human rights violations such as the Penal Code. Rather than addressing existing problems in the legislative framework and offering a remedy, it is vague in providing solutions for marginalized groups such as the Lesbian Gay Bisexual Transgender and Intersex (LGBTI). Examples of sections in the Penal Code are 162 (a) and 165(c) that make vague reference to “Carnal knowledge against the order of nature” andgross indecency” that criminalizes homosexual acts. This not only discriminates against adult men who consent to private sexual acts, but also makes it unlawful to sexual acts that do not result in the production of offspring. Punishment for breaking these laws is up to fourteen years and five years’ imprisonment respectively. It is controversially argued by many that this sections are not consistent with the constitution and should be repealed.

Article 27.4 of the Kenyan constitution states ‘’ 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.’’. Nonetheless both the state and citizens of Kenya continue to engage in the systematic discrimination, stigma and violence against Lesbians Gay Bisexual Transgender & Intersex persons (LGBTI). These groups continue to face insurmountable challenges in accessing health care services, social stigma, police brutality, mob violence, living with the fear of losing their livelihoods, blackmail and extortion. These actions leave LGBT persons marginalized in their own communities, homeless in the streets, victims of violence and where they are more likely to result to extreme drug abuse, and for some unfortunately suicide seems like the only solution.

In 2016 the National Gay and Lesbian Human Rights Commission (NGLHRC) and members of the LGBTI community sought to challenge the constitutionality of sections 162(a)(b) and 165 of the Penal Code of Kenya by filing a case at the High Court of Kenya. This case was speaking to the right to privacy where adults should be able to engage in consensual sexual conduct in private without external intrusion; the right to dignity providing for humane treatment; the right to health; the right to equality and non-discrimination with freedom and security of the person. It is however important to note that NGLHRC did not reference to non-consensual sexual acts, legalizing gay marriage or the promotion homosexuality but rather promoted to the rule of law that oversees human rights for all persons as enshrined in the Constitution of Kenya.

It is not illegal to be a homosexual in Kenya as believed by many; however, the penal code of Kenya criminalizes private sexual conduct between two adults of the same sex. This continues to validate stigma, discrimination and violence towards lesbian, gay, bisexual, transgender and queer persons. Over 1,000 incidents of violations against LGBTI people have been documented since 2014; ranging from murder to mob violence, verbal assault, rape, blackmail and extortion. It is evidently clear that these sections of the law continue to perpetuate the violation of rights guaranteed to all Kenyans in Chapter Four of the Constitution. Having these laws repealed will inspire an Africa in which human rights are respected and diversity embraced without stigma and discrimination.

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