22 March 2018

Kenya: Rare Win for Gay Rights as Court Rules Forced Anal Tests Illegal

Nairobi — In a rare win for gay rights campaigners in Kenya, its Court of Appeal on Thursday ruled that it is illegal to force people suspected of being homosexual to undergo anal examinations.

The landmark case was brought by the National Gay and Lesbian Human Rights Commission (NGLHRC) after two men were arrested in 2015 on suspicion of having gay sex, which is illegal in Kenya and punishable by 14 years in jail.

The men said they were subjected to forced anal examination by security personnel and a public hospital in Kenya's coastal city of Mombasa to determine if they had engaged in anal sex and were homosexual. They were also forced to take HIV tests.

"The NGLHRC has long argued that the tests are a violation of rights to privacy and dignity and amount to torture," said a statement from the charity, which represents the rights of sexual minorities in the conservative east African nation.

"The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit."

Homosexuality is taboo across Africa and the persecution of gay people is rife. Sexual minorities are routinely abused, assaulted by mobs, raped by police or vigilantes, or enslaved by criminals, campaigners say.

The judgment ends a three-year legal battle by the NGLHRC to prove that the examinations violated the rights of Kenyan citizens. It originally lost the case in 2016 when Mombasa's High Court ruled the anal tests as constitutional.

The charity then challenged the ruling in the Court of Appeal in Mombasa, which has now ruled in its favour - but many African countries such as Uganda, Zambia, Egypt and Cameroon still conduct forced anal examinations.

"The humiliation and pain caused by these useless anal examinations will follow our clients for the rest of their lives," said NGLHRC's head of legal affairs Njeri Gateru.

"However, we are emboldened to see our constitution at work, ensuring that all Kenyans have the right to dignity."

The NGLHRC is also challenging a British colonial-era Penal Code which criminalises gay sex. The court is expected to announce on April 26 the date that it will deliver its ruling.

(Reporting by Nita Bhalla @nitabhalla, Editing by Katy Migiro. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women's rights, trafficking, property rights, climate change and resilience. Visit http://news.trust.org)

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