Kenya High Court Sharply Criticized for Upholding Sodomy Law

Kenya’s High Court on May 24, 2019, upheld the constitutionality of the country’s colonial-era sodomy law. (Photo by Kevin Walsh; courtesy of Wikimedia Commons)

(WB) Activists in Kenya have sharply criticized their country’s High Court over its ruling that upheld the constitutionality of a colonial-era sodomy law.

The New York Times reported activists were inside the courtroom in the Kenyan capital of Nairobi on May 24 when a three-judge panel issued their ruling. 

OutRight Action International in a press release it issued with a quote from Njeri Gateru, executive director of the National Gay and Lesbian Human Rights Commission, a Kenyan advocacy group, notes the judges concluded the provisions of the sodomy law that Eric Gitari and other plaintiffs challenged do not discriminate against LGBTI Kenyans because they do not target a specific group of people.

The press release notes the judges concluded the provisions of the sodomy law do not violate an LGBTI person’s right to privacy or dignity. It also highlights the judges dismissed the plaintiffs’ claims the sodomy law is unconstitutional because the decriminalization of consensual same-sex sexual relations in Kenya “would indirectly open the door to same-sex unions” that “would be against values of the constitution.”

Gitari, who is among the co-founders of the National Gay and Lesbian Human Rights Commission, described the ruling to the New York Times as a “sad day for the rule of law and human rights.” The Refugee Coalition of East Africa, which includes Kenya-based groups that advocate on behalf of LGBTI refugees, in a statement said a ruling against the sodomy law “would have supported the notion that the act of being queer is an act of freedom of expression and love.”

“Instead, Kenyan courts chose to continue to make our relations the actions of a criminal,” said the organization. “In solidarity with so many LGBTQI Kenyans, we are disappointed that the courts did not take today to act and stand up for human rights, for equality, and for a better Kenya.”

“The argument of the High Court of Kenya is flawed,” added OutRight Action International Executive Director Jessica Stern in her organization’s press release. “Dismissing a petition to decriminalize same-sex sexual activity because it may indirectly open the door to petitions for equal marriage fails to consider the case at-hand in favor of an arbitrary future, which, frankly, is absurd.”

“In doing so, the High Court has re-established, in the harshest terms, that human rights for LGBTIQ people are conditional,” she added. “This gives the green light for discrimination, harassment and violence.” 

The Kenya High Court issued its ruling less than a year after the India Supreme Court struck down the country’s colonial-era sodomy law. Judges in Trinidad and Tobago and Belize in recent years have also ruled against similar statutes.

Outgoing British Prime Minister Theresa May in a 2018 speech said sodomy laws the U.K. put in place in its former colonies “were wrong then, and they are wrong now.” 

“As the U.K.’s prime minister, I deeply regret both the fact that such laws were introduced and the legacy of discrimination, violence and even death that persists today,” she added.

The New York Times reported Gitari and other plaintiffs in the Kenya case plan to appeal the High Court’s ruling.


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