Nairobi — A Kenyan Court has ruled that forced anal examinations and forced HIV and Hepatitis B tests of men suspected of homosexual conduct are constitutional, the National Gay and Lesbian Human Rights Commission (NGLHRC) and Human Rights Watch said today. The deeply disappointing ruling would allow the government to continue these abusive practices and to use the test results as "evidence" in criminal prosecutions for consensual same-sex conduct.
The ruling, by the Mombasa High Court, is a blow to petitioners who rightly argued that the forced anal examinations they were forced to endure are a form of cruel, inhuman, and degrading treatment that can often amount to torture. The case was brought by two men who were subjected to forced anal exams, HIV tests, and Hepatitis B tests at Mombasa's Madaraka Hospital in February 2015.
"This ruling is a devastating precedent that has now heightened the risk and fear of similar anal testing on many lesbian, gay, bisexual, transgender, intersex and queer persons in Kenya," said Eric Gitari, executive director of NGLHRC. "Suspecting someone of being gay should not be grounds for stripping them of their dignity and their fundamental rights."
The court accepted the argument put forward by government respondents in the case that the medical examinations were reasonable and were performed in accordance with the law. The court also ruled that the two men consented to the examinations through the lawyer who represented them at the time. Petitioners maintain that they had no idea what "medical examinations" they were meant to undergo until they arrived at the hospital, and that they signed consent forms only under duress while in police custody. They were reportedly taken to the hospital in handcuffs to have the tests conducted.
The ruling is a setback, but it does not change the Kenyan government's obligations under international human rights law.
The case of the two petitioners, known only as C.O.I. and G.M.N. in the petition, is unique in Kenya. Human rights organizations are aware of no other cases in which anyone arrested under Kenya's colonial-era law prohibiting "carnal knowledge against the order of nature" - which is widely understood to prohibit anal sex or sex between men, but is rarely applied - has been subjected to forced anal exams. However, Human Rights Watch has interviewed victims of anal exams in other countries who affirm that the authorities have relied on the abusive tests regularly or repeatedly to attempt to "prove" consensual homosexual conduct.
The exams usually involve doctors or other medical personnel inserting their fingers, and sometimes other objects, into the anus of the accused. In other cases, men are ordered to strip naked and bend over or lie down with their feet in stirrups while doctors "visually" examine their anal regions. The Independent Forensic Experts Group has found that the exams are both medically worthless and a severe violation of medical ethics. Human Rights Watch has interviewed people in several countries who were forced to undergo these exams and experienced them as a form of sexual violence. The UN Committee Against Torture has called on several countries, including Cameroon, Egypt, and Tunisia, to cease conducting forced anal exams.
The Kenyan case is the first case known to human rights activists in which victims anywhere in the world have attempted to use domestic courts to challenge the use of the exams. The NGLHRC, which represented the petitioners in the constitutional challenge, has filed an appeal against the ruling.
"The ruling is a setback, but it does not change the Kenyan government's obligations under international human rights law," said Neela Ghoshal, senior researcher on lesbian, gay, bisexual and transgender (LGBT) rights at Human Rights Watch. "Kenyan authorities should abandon these abusive practices and, if domestic law permits them, the law should be changed."