Court ruling threatens the HIV response in Kenya
Last month, lesbian, gay, bisexual and transgender (LGBT) activists in Kenya were left stunned when the Kenyan High Court dismissed the petition to decriminalise consensual same-sex sexual acts. The petition, filed in 2016 by three Kenyan organisations working to protect the health and human rights of LGBT people, argued that articles 162 and 165 of Kenya’s Penal Code violate the rights to equality, non-discrimination, human dignity, security, privacy, and health for LGBT people, protected for all citizens under the country’s constitution.
The three-judge bench found that the petitioners failed to convince the court that articles 162 and 165 were used to discriminate against sexual and gender minorities and insisted that they did not, in fact, violate their constitutional rights to privacy and equality. In their unanimous decision, the judges also stated that the articles were not particular to LGBT people and other sexual and gender identities, claiming that anyone who engaged in an unnatural act, as defined by Kenyan law, would be criminalised and that constitutional rights to privacy and dignity are not absolute.
The impact on HIV prevention, treatment and care
Kenya’s HIV Response Progress Report shows HIV prevalence among MSM is 18.2% compared to 4.9% for the general population. Evidence presented by the petitioners show that criminal laws are used to punish same-sex sexual acts and that they restrict LGBT people and men who have sex with men (MSM) from accessing healthcare and HIV services due to discrimination and fear of prosecution. The HIV sector in Kenya will struggle to meet HIV prevention targets to reduce new infections without a change in legislation.
According to Human Rights Watch, worldwide, there are still 69 countries where same-sex relations are criminalised. The Kenyan ruling is particularly disappointing in light of progress in Africa and elsewhere in the world. Earlier this month, Botswana’s High Court decriminalised same-sex relations, Angola recently decriminalised homosexuality and banned discrimination based on sexual orientation, and South Africa is the only African country to legally recognise same-sex marriages. The petitioners are resolute and will appeal the High Court’s decision in a fresh bid to overturn the law.
Kenya has missed an opportunity to take a clear stance against discrimination. I believe justice will eventually prevail in Kenya, as in other parts of the world that have decriminalised same-sex conduct, but in the meantime, ordinary LGBT Kenyans will continue to pay the price for the state’s indifference to inequality. Njeri Gateru, Director of the National Gay and Lesbian Human Rights Commission
National Gay and Lesbian Human Rights Commission (NGLHRC) is a PITCH partner in Kenya.