Words by Neo Musangi; Edited by Kellyn Botha

The High Court in Kenya chose to uphold a piece of legislation that criminalises ‘carnal knowledge against the order of nature’ as stipulated in the country’s British colonial-era Penal Code.

This was lauded by many in the conservative country as a “moral” judgement, but represents a blow to the country’s LGBTIQA+ community. Doubly so given that 2019 has otherwise seen a push toward greater freedoms for LGBTIQA+ persons in the global South, from Angola and Botswana to Ecuador. Indeed, many expected the trend toward equality to continue, with Kenya making it easier in 2017 for transgender persons to change their names, and recently allowing the National Gay and Lesbian Human Rights Commission (NGLHRC) to formally register as an organisation, after a protracted legal battle. But it was not to be

In a petition filed in 2016 by the NGLHRC – later joined by the Nyanza, Rift Valley and Western Kenya Network (NYARWEK) and the Gay and Lesbian Coalition of Kenya (GALCK), among others – activists argued that sections 162 and 165 of the Kenyan penal code are in violation of the Kenyan Constitution.

Between February and September 2018, the joint petition was heard several times, with legal representatives arguing on the need to be allowed to make oral arguments in relation to India’s Supreme Court ruling that legalized same sex intimacy. After the hearing was postponed, with the judges stating they needed more time to assess the case, the final ruling was handed down on 29 May 2019.

Faced with international scrutiny and local ambivalence, the three-judge bench comprising Lady Justice Roselyn Aburili, Justice John Mativo and Justice Chacha Mwita, unanimously ruled that the petitioners had failed to prove that the clauses in question, in fact, discriminated against and violated the rights of Kenya’s LGBTIQA+ community. Dismissing the case, the judges insisted that these clauses were not particular to LGBTIQA+ persons but rather were a block that covered anyone engaging in “unnatural acts”, regardless of their gender identity and/or their sexual orientation.

By upholding this legislation, the judges meant that these laws remain in practice and represent a daily assault on the safety and dignity of LGBTIQA+ persons in Kenya. The community remains under threat, but the NGLHRC and their partners have vowed to continue their work. The case will be taken to the Court of Appeal, with those behind the initial petition requesting widespread support in sustaining their fight. See how you can support this case here: https://www.repeal162.org/about162, and read full, discriminatory ruling here!

Neo Musangi is co-founder of Iranti. Living today in Kenya, they remain a vocal force in queer-activist spaces and communities.