What Are LGBQ Rights?
LGBQ rights are human rights that are meant to promote a position of social and legal equality of lesbians, gays, bisexuals and queer (LGBQ) people in society. LGBQ rights address injustices against members of the LGBQ community by outlawing discrimination and violence, requiring changes in law in areas such as access to health, education, public benefits, and by recognising different types of relationships and families.
As a Member of the LGBQ Community in Kenya, Do I have Rights?
Yes. Members of the LGBQ community have the same rights as all members of society. Members of the LGBQ community have equal rights in society as human beings. However, members of the LGBQ community face challenges when it comes to their rights. These challenges arise from certain laws that make sexual acts between persons of the same sex a crime.
Some members of the LGBQ community are better protected from violence and discrimination by the constitution. This is because laws that outlaw discrimination on grounds of sex and gender protect transgender and intersex individuals. However, the law does not adequately address the needs of Kenya’s transgender and intersex community. Members of this community experience challenges accessing health care and changing their names and gender in legal documents.
As a Member of the LGBQ community in Kenya, what does the Constitution say about My Human Rights?
The Constitution of Kenya, 2010, has a lot to say about your rights! According to Article 19 (3) (a), the constitution states that your rights belong to you because you are a human being and are not granted by the state. Although some rights can be limited in some situations (Article 24), some rights cannot be limited at all. The rights that cannot be limited are:
- Freedom from torture and cruel, inhuman or degrading treatment or punishment;
- Freedom from slavery or servitude;
- Right to a fair trial; and
- Right to an order that a person be presented before a Court of law.
According to Article 27 of the constitution, every person is equal before the law. Article 27 (4) of the Constitution says that: The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Although sexual orientation is not included in Article 27 (4) of the constitution, this does not mean it is okay to discriminate against a person because of his or her sexual orientation. In fact, the High Court has stated that it is unlawful to discriminate against a person because of his/her sexual orientation.
I have Heard about Sections 162 and 165 of the Kenyan Penal Code, What do these Laws Say?
Sections 162 (a) and (c) says that any person who has ‘carnal knowledge against the order of nature’ or permits a person to have ‘carnal knowledge against the order of nature’ against them has committed a crime.
‘Carnal knowledge against the order of nature’ is any sexual activity between two or more persons that does not involve the penis penetrating the vagina. This includes anal sex, oral sex, frottage (sexually rubbing and touching a clothed body part as a way of achieving sexual pleasure), thigh sex, handjobs, and anilingus (sexual stimulation of the anus by the tongue or mouth).
Section 162 (a) and (c) makes it a crime for both same-sex and opposite sex couples to participate in the sexual activities described above. If a person is found guilty for a crime under Section 162 (a) and (c) of the Penal Code, that person can be sentenced to a maximum of 14 yearsin prison. Section 165 states that any person who commits an act of ‘gross indecency with another male person’ has committed a crime. ‘Gross indecency’ is any sexual activity between two men that does not involve penetration whether committed in public or in private.
Gross indecency involves kissing, hugging, holding hands, cuddling, sleeping on the same bed, or touching and rubbing of any body part as a way of achieving sexual pleasure. Section 165 only applies to sexual conduct between men. If someone is found guilty under this law, he can be sentenced to a maximum of 5 years in prison.
How do these Laws affect LGBQ Rights?
By making private consensual same-sex conduct a crime, Sections 162 (a) and (c) and 165 interfere with the lives of gay, lesbian, and bisexual individuals. A person’s sexual orientation is an important part of an individual which, when not fully and freely expressed, negatively affects a person’s search for happiness. Laws that make adult, private and consensual same-sex conduct a crime lead to violence and discrimination against individuals on grounds of their sexual orientation. In some cases, members of the transgender and intersex community face violence and discrimination after being mistaken for being gay, lesbian, or bisexual.
Is being LGBQ a Crime?
No. Identifying as lesbian, gay, bisexual, transgender, or intersex is not a crime. Even though some laws make private and consensual sex between adults of the same-sex a crime, these laws criminalise acts and not identities.
Stating openly that you identify as gay, lesbian, bisexual or queer is a protected freedom according to Article 33 of the Constitution (freedom of speech and expression).
Can an Employer Fire me or Deny me Employment because of my Sexual Orientation, or Gender identity or Expression?
No. According to the Employment Act, it is the duty of the government and an employer to promote equality of opportunity between employees. Equality of opportunity means that all employees have the same chances to promotions, salaries, and work benefits. Equality of opportunity also means that all persons who apply for a job have the same chances of being employed and that the only thing that disqualifies an applicant from being hired is their qualifications.
The Employment Act also promotes equality in the work place. Equality is where all employees are treated equally without discrimination. The Employment Act outlaws an employer from discriminating directly or indirectly against an employee or potential employee.
Direct discrimination is where a person discriminates against another person on certain grounds. For example, refusing to hire someone because of sexual orientation, gender identity or expression is direct discrimination. Indirect discrimination is where a law discriminates against a certain group of people even though it does not mention this group. For example, when an employer creates a new workplace rule requiring that all employees be married by 30 years of age or be dismissed from employment, this is indirect discrimination on grounds of sexual orientation since persons in same-sex relationships cannot get married in Kenya even if they wanted to.
Although the Employment Act does not mention sexual orientation, the law protects all employees regardless of their sexual orientation. By outlawing discrimination on grounds of sex, the Employment Act protects transgender and intersex workers.
Can my landlord evict me because of my sexual orientation, or gender identity or expression?
No. Article 43 (1) (b) of the constitution says that every person has the right to “accessible and adequate housing, and reasonable standards of sanitation.” According to this law, ‘every person’ includes all persons regardless of their sexual orientation and gender identity.
The right to housing includes a person’s right to become a tenantand enter into a fair and non-discriminatory agreement with a landlord. After agreeing to become a tenant, the landlord, other tenants, and members of the public cannot interfere with someone’s right to occupy his or her premises.
Kenya has few laws regulating the landlord-tenant relationship, and some of these laws are so outdated that they do not apply to the majority of tenants, especially those living in urban areas.
According to Section 14 (1) (b) of the Rent Restriction Act (1959), landlords are allowed to evict tenants for the following reasons:
- The tenant has been found guilty by a court of law of conduct which is annoying to fellow tenants or other persons living near the residence
- The tenant has been convicted by a court of law of using or allowing the premises to be used for an immoral or illegal purpose.
A landlord is not allowed to evict a tenant without an eviction order by the Rent Tribunal. The Rent Tribunal is a body established by the Rent Restriction Act to settle disputes between landlords and tenants. Section 29 of the Rent Restriction Act prohibits landlords from subjecting tenants to annoyance with the intention of forcing the tenant to vacate the premises.
However, the Rent Restriction Act is very outdated: only landlord tenant agreements of a maximum rent of 2500 shillings per month are covered by the act. This means that if a person pays rent of more than 2500 per month, he or she is not protected by the Rent Restriction Act. GALCK still believes that the laws discussed can be relied on by tenants to create an agreement between them and their landlords that does not discriminate on grounds of sexual orientation, gender identity, and expression .
Is there anything being done to support LGBQ rights in Kenya?
There are many organisations working to support the rights of LGBQ persons in Kenya. Some of these organisations, like GALCK, work primarily on LGBQ rights. Other organisations support on human rights more broadly and include LGBQrights as part of their work. The Gay and Lesbian Coalition of Kenya is a national coalition of organisations spread across Kenya working on LGBQ issues. These organisations work on issues such as health, human rights, outreach to religious leaders and politicians, legal aid, and security. GALCK is also part of a global movement that works to promote the human rights of all people, regardless of their sexual orientation and gender identity or expression.