Court of Appeal in Mombasa has declared that medical examination conducted on two men to determine if they were gay was unconstitutional.
Court of Appeal Judges Alnasir Visram , Wanjiru Karanja and Martha Koome declared that the tests and examinations were illegally ordered and conducted, thus the admission of the results by the subordinate court went against the appellants' right against self-incrimination.
"The right to privacy, particularly not to have one's privacy invaded by unlawful search of the person, is closely linked to the right to dignity. Those rights in our view extend to a person not being compelled to undergo a medical examination," the judges said in a judgment read by Justice Visram.
The appellate judges noted that whereas Section 36 of the Sexual Offence Act empowers the court to direct examination of an accused person to establish his involvement in a sexual offence, such discretion is subject to limitation.
CONFINES OF LAW
"The court can only issue such an order with respect to an offence committed under that Act and not any other, further in exercising that discretion like any other discretion, the court is required to act judiciously within the confines of the law," he said.
Mr Caleb Omar Idris and Mr George Maina Njeri had appealed a ruling by retired Resident Judge Anyara Emukule, who absolved the police of any wrong doing by forcefully obtaining evidence from them as a proof that they were engaging in unnatural sex.
In their appeal papers, the appellants challenged this decision on grounds that Justice Emukule erred in law by finding that they had consented to the medical examination in question and that such consent justified the infringement of their rights.
They argued that the judge failed to address himself on the scope of the constitutional rights claimed to have been violated and that he misconstrued the meaning and application of the phrase appropriate samples within section 36 of the Sexual Offences Act.
Further, the appellants said the judge erred in law by finding that the question of whether the use of anal examination was reasonable was a question of fact which could only be resolved by the trial court and thereafter appellate court.
They also faulted the judge of failing to consider their complaints regarding their treatment in Kwale prison.
The appellants claimed that their rights were violated in three fronts that is through what they deemed as forced medical examination, the admission of those results in the criminal proceedings and their treatment at the prison during their incarceration.
In their determination, the appelate judges said the lower court in Kwale acted beyond its mandate in granting orders for the anal medical examination, adding that the appellants were not arrested in the act and that there was no complainant.
They further noted there was no reasonable explanation as to why they were suspected to having committed the offence and that no proper basis was laid before the court to necessitate the impugned orders made.
"It is thus apparent, regardless of one's status or position or mental or physical condition, one is, by virtue of being human, worthy of having their dignity or worth respected," they ruled.
VIOLATED THEIR RIGHTS
"The upshot of the forgoing is that the appeal is hereby allowed for the reasons outlined above, we therefore grant orders sought that an order that the respondents conduct in subjecting the petitioners to anal examinations violated their rights," the judges said
The appellate judges further ordered that "an order that the use of evidence obtained through anal examinations of the petitioners in criminal proceedings against them violates their rights, consequently such evidence should be expunged from the criminal proceedings,"
The suspects had denied committing an unnatural offence, an alternative count of committing indecent act and trafficking in obscene publications on February 18, 2015 at Tandoori area in Ukunda township,Kwale county.
The suspects were subjected to forced medical examination at Coast General Hospital following an order from Kwale Resident Magistrate.