LGBT rights in Kenya are limited in comparison to other jurisdictions in the world. Under sections 162, 163 a) & c), and 165 of the Penal Code, any sexual practices between males (termed “gross indecency”) are a felony and are punishable by 5 to 14 years imprisonment. In Kenya, the state doesn’t recognize any relationships between persons of the same sex. Same-sex marriage is banned under Article 45 of the Kenyan Constitution. These punitive anti-LGBT laws have led to stigmatization, discrimination, harassment, and violence against the LGBT communities.
Because the majority of Kenyans would have rejected the new constitution in the 2010 referendum to adopt it, experts who drafted the 2010 Constitution of Kenya put it in a way that it doesn’t expressly protect the rights of LGBT persons. However, statutes discriminating against LGBT persons are unconstitutional and void because of the constitution’s broad protection of civil and human rights.
The Bill of Rights (Articles 19-59) is an integral part of Kenya’s democratic state and is the framework for social, economic, and cultural practices. The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.
The Bill of Rights under Article 27 of the Kenyan Constitution provides that “every person is equal before the law and has the right to equal protection before the law.” The article doesn’t exclude homosexuals from the ambit of constitutional protection. Further, Article 27(4) prohibits discrimination on the grounds of “sex.” The prohibition of discrimination on the grounds of sex has been understood to include sexual orientation. The constitution eliminates all wiggle room by prohibiting both direct and indirect discrimination.
Kenya must take concrete steps to provide for the protection and equal treatment of LGBT persons, decriminalize same-sex activity between consenting adults, repeal all legislative provisions which criminalize sexual activity between consenting adults, decriminalize homosexuality by abrogating the legal provisions currently punishing sexual relations between consenting individuals of the same sex, and finally subscribe to the December 2008 General Assembly Declaration on Sexual Orientation and Human Rights (France).
Initially published by Standard Media Group
