Kenya's High Court to Rule Friday on Legality of Gay Sex

(file photo).

This Friday, Kenya's High Court is set to rule on a case challenging colonial-era laws that criminalize homosexuality. The petitioners want the court to declare those laws unconstitutional in hopes that will make life easier for the country's gay, lesbian, bisexual and transgender community.

Stanely Muasa, a gay man living in Kenya, said going to parties or events alone is always a risky affair. It is safer if he is in a group of two or three people, he said.

In the past, he has been attacked by strangers — an experience shared by many gays and lesbians in Kenya, he said.

He is hoping that on Friday, Kenya's High Court will overturn the law that he said has fueled homophobia for decades.

The laws he refers to are the sections of the penal code that make gay sex a crime.

"There is no way someone is going to traumatize you, yet you have a right to go to any police station or any facility that gives justice. So it will change, everything will change, even police officers how they carry [treat] key populations, it will have to change," said Muasa.

In 2016, three Kenyan gay rights organizations filed petitions with the High Court asking it to declare sections 162 (a) and (c) and section 165 of the Penal Code unconstitutional. The organizations argue the laws violate the right to privacy, the right to freedom of expression, the right to health, the right to human dignity and the right to freedom from discrimination.

Court hearings began in February 2018.

Otsieno Namwaya is a researcher at Human Rights Watch. He said the laws, which date from 1930, infringe on LGBT rights and deny them access to medical services or police protection.

"Even Kenya's own constitution outlaws discrimination of any kind, so it is illegal to allow discrimination on the basis of religion, on the basis of tribe, on the basis of sexual orientation. So it is a contradiction for the constitution to say on one hand that any form of discrimination is illegal but on the other hand retain laws that discriminate against one section of the people," said Namwaya.

Irungu Kangata is a Kenyan senator and vocal opponent of gay rights who is also participating in the case.

He said if the court strikes down the laws, he and his supporters will seek other avenues to stop what he calls the "LGBT agenda."

"We either appeal but I foresee little chance of success in our judiciary because I strongly believe that our judiciary has been captured by NGOs. The best-case scenario would be to push for a referendum to amend certain articles of the constitution so its very clear that such behavior is not allowed in Kenya," he said.

If the petitioners win, Kenya would be the first country in East Africa to decriminalize homosexuality.

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