“We have a constitution that carries the will of the Kenyan people and that says no one should be discriminated against, yet these laws do just that.” – Eric Gitari, Executive Director, National Gay and Lesbian Human Rights Commission (NGLHRC)
That is what the current case at the Milimani Law Courts seeks to advance and achieve. A chance for ALL Kenyans to enjoy the human rights provided for in the constitution, without discrimination on the basis of their sexual orientation. We are all Kenyans, equal before the law and have the right to equal protection and equal benefit of the law.
The new constitution, promulgated in 2010, is a symbol of our nation’s hopes, dreams, and the future we imagine for ourselves. It is in no way supposed to make some persons feel legally discriminated against. However, the presence of prejudiced media, homophobic Kenyans, clerics and politicians who boast a strong moral and religious compass yet spew hate and violence, has seen the voice of the sexual minority stifled. That coupled with the belief that the lesbian, gay, bisexual and transgender (LGBT) individual is foreign and an erosion of the African culture has seen persons identifying as LGBT violated and denied their basic rights such as right to health, dignity and privacy among others.
It is with this in mind that Thursday 22nd February marked a historical day as a case challenging some laws and articles of the constitution kicked off at the Milimani Law Courts. The petitioners are challenging sections of the Kenyan Penal Code that are in breach of the Constitution and deny basic human rights to Kenyan citizens.
The disputed sections of the Penal Code (Section 162 a) and c) and Section 165) makes vague reference to “carnal knowledge against the order of nature” and “gross indecency.” Despite the fact that the law criminalizes a broad range of consensual activities that cannot produce offspring (including oral sex and masturbation), they are enforced selectively to target members of Kenya’s LGBTIQ community.
The case heard alongside similar petitions filed by the Gay and Lesbian Coalition of Kenya (GALCK) and Nyanza Rift Valley and Western Kenya (NYARWEK) seeks to have the equality provided for in Chapter Four of the constitution upheld by the government of Kenya.
The hearing was met with optimism from the members of the public who turned up in big numbers, forcing the session to be moved to a bigger room so that the majority of people could fit in.
Expert witness, Dr. Lukoye Atwoli during the cross examination informed the court that “Homosexuality is not a disease or a mental disorder and in most persons, it is fixed and unchanged.” One can only live as a repressed homosexual if the law does not provide for their rights.
With #Repeal162 trending, many assumed that the case sought to legalize same sex marriages, an assumption that is eons away from the truth.
This case is about consensual sexual conduct between adults held in private without the state’s intrusion; the right to dignity providing for humane treatment and personhood; the right to health as the constitution guarantees the highest attainable standards of health accorded to every citizen; the right to equality and non-discrimination and freedom and security of the person. Rights that are violated when enforcing Sections 162 and 165.
The next hearing will is on March 1st where the respondents are expected to make their submissions.