In the complex landscape of Kenya’s human rights struggles, the historical implications of colonisation echo through the present, particularly regarding the rights of lesbian, gay, bisexual, trans, and gender-diverse (LGBTQ+) individuals. Inherited from its colonial past, our legal system bears the burden of archaic laws criminalising same-sex sexual activity. Despite the Constitution of Kenya (2010) explicitly advocating for human rights and security for all citizens and the British government issuing a statement taking responsibility for the colonial laws, the government continues to blatant disregard for its constitution reflecting the marginalisation and dehumanisation of LGBTQ+ individuals in the country. Unyielding political, legal, religious, and social resistance perpetuates extreme hostility and violence against sexually and gender-diverse people. Even amidst these challenges, LGBTQ+ organisations tirelessly operate within a deeply conservative, patriarchal, and sexist environment.
The Penal Code has sections 162(a and c), 163, and 165 that criminalise sexual activities that are perceived to be against the order of nature and compound the oppression faced by the community. While these sections apply to all Kenyans, they are selectively used to criminalise same-sex relationships. The ambiguous language used in these sections also makes it difficult to define gross indecency since it criminalises even innocent actions like hugging or holding hands between people of the same sex and was part of the reason the judges ruled against decriminalisation on the Repeal Case (Petition 150 of 2016) citing that these sections of the Penal Code don’t directly target LGBTQ+ Kenyans. These laws also affect the transgender and intersex communities. The misguided narrative that limits people’s understanding of the difference between sexual orientation and gender identity leads many Kenyans to assume that transgender and intersex persons are homosexual or bisexual. Although few people have been charged under these laws, they are often used to justify violence and discrimination against LGBTQ+ individuals, creating a perception that they are criminals; a perception that subsets of the state and religious institutions to further perpetuate human rights violations and acts of violence.
Limited but important progress has been made on the rights of LGBTQ+ people over the last 10 years. There have been notable developments at the regional level, through the East African Community Sexual and Reproductive Health Bill in 2021, which emphasises the importance of comprehensive sexual education. These efforts reflect a growing recognition of the need to address the specific needs and rights of LGBTQ+ individuals. These victories included a case that established that the use of forced anal examination is illegal, a case that upheld the right of LGBTQ+ people to form and register organisations (the right of association and assembly), and a case that upheld the rights of transgender individuals to change names on legal documents. A constitutional challenge to the laws criminalising same-sex sexual activity was rejected in 2019 by the High Court and is currently being appealed. In July 2019, Kenya became the first country in Africa to incorporate an intersex category into the national census and became the first African country to grant universal rights and recognition to intersex people.
Despite these significant legal victories, these achievements are consistently undermined by a relentless propaganda machine that spreads misinformation and disinformation. This misinformation has profound consequences, leading to offline violence and pervasive harm throughout both online and offline spaces. The community has become a prime target for such attacks, often fueled by politicians who employ inflammatory rhetoric to divert attention from pressing issues or to gain popularity. Consequently, LGBTQ+ individuals and organisations are unjustly scapegoated and blamed for unresolved matters. These misguided statements exacerbate vulnerability and expose the community to increased human rights violations in various domains, including workplaces, homes, schools, and recreational settings. Additionally, the opportunistic actions of Christian Right opposition groups like Citizen Go and the Kenya Christian Professionals Forum (KCPF), have posed significant challenges. These groups have leveraged their unrestricted access to platforms, engaging in extensive organising and mobilising efforts against our community. Meanwhile, we are left grappling with limited resources and opportunities to counter their harmful narratives effectively.
There is evidence that discrimination against LGBTQ+ people denies them their right to access quality healthcare, resulting in poorer health outcomes. A study by PEMA Kenya and Human Rights Watch noted that there were specific hotspots in Kenya where violence against LGBTQ+ people was rampant and this was the outskirts of major cities that is why many LGBTQ+ youth opted to move to bigger cities because they find a greater sense of belonging and community and togetherness. Further, several healthcare providers present a loophole around cultural competence in addressing the specific health needs of LGBTQ+ individuals. This creates barriers to healthcare services, including HIV/AIDS prevention, testing, treatment and management, exacerbating the vulnerability of the community to health risks. The persistent discrimination and social stigma take a toll on the mental health and well-being of LGBTQ+ individuals in Kenya. In a study on Mental Health Challenges and Needs among Sexual and Gender Minority People in Western Kenya, they found that 11.7% of participants reported clinically significant levels of psychological distress, 53.2% said clinically significant levels of post-traumatic stress disorder (PTSD) symptoms, and 26.1% reported clinically significant levels of depressive symptoms. Further, these laws contribute to economic disparities and employment discrimination against LGBTQ+ individuals leading to lower employment opportunities, unequal pay and job insecurity. Many LGBTQ+ individuals may even be forced to conceal their sexual orientation or gender identity to avoid harassment or even termination (job insecurity). These persistent adversities have made it extremely difficult for the LGBTQ+ community to thrive in Kenya.
It is crucial to highlight that the perception of LGBTQ+ identities as “Western” and the notion that homosexuality is not part of Kenyan culture are false narratives used to further stigmatise and marginalise the community. These beliefs seek to maintain a notion of “normalcy” based on heteronormative ideals while disregarding the lived experiences and diversity of sexual orientations and gender identities within Kenyan society. These narratives ignore evidence that speaks to the existence of queerness in pre-colonial Kenya indicating that homophobia and discrimination against LGBTQ+ individuals were imported through colonial influences rather than being inherent to Kenyan culture. The criminalisation of same-sex sexual activity and the negative attitudes towards LGBTQ+ individuals stem from colonial-era laws and societal prejudices imposed during that time. These laws and prejudices continue to shape the social and legal landscape, perpetuating discrimination and hindering the full freedoms and enjoyment of human rights by LGBTQ+ persons.
In this era where many human rights are under attack, it’s essential to remember the foundation upon which progress is built. The Kenyan Constitution, with its progressive Bill of Rights, serves as a beacon of hope. Article 27, which enshrines the principles of non-discrimination, and Article 10, emphasises national values, and stand as powerful reminders of the nation’s commitment to equality, justice, and unity in diversity. As we celebrate Katiba Day on the 27th of August, let us hold firm to these constitutional principles, lighting the path towards a more inclusive and just Kenya for all its citizens.