A three-judge bench in the Kenyan High Court on Friday (today) will deliver a ruling on whether to decriminalize same sex relationship or uphold the law banning homosexuality.
The ruling was postponed in February.
The petition filed by Eric Gitari, the National Gay and Lesbian Human Rights Commission Executive Director, wants the court to quash sections 162 and 165 of the Penal Code.
The LGBT activists have argued that the Kenya 2010 Constitution violates the rights to equality, dignity, freedom from discrimination and privacy for all its citizens adding that the State has no business regulating matters of intimacy.
Section 162 reads: “Any person who – (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.”
Section 165 reads: “Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.”
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The petition, however, faced opposing from the Kenya Christians Professional Forum that hosts: Kenya Conference of Catholic Bishops, National Council of Churches in Kenya and Evangelical Alliance of Kenya, Murang’a Senator Irungu Kangata through lawyer Harrison Kinyanjui, Registered Trustees of Jamia Masjid Ahle Sunneit Wal Jamaat and Registered Trustees Umma Foundation.
The opposers want the court to uphold Article 45(2) that states every adult has the right to marry a person of the opposite sex.
In Africa, homosexuality activity between adults have been decriminalised in Angola, Cape Verde, Guinea Bissau, Lesotho, Mozambique, São Tomé and Príncipe and Seychelles while South Africa is the only country that has legalized same-sex marriage.
Many African countries are adamant to increase LGBT rights with its leaders alleging that it was brought into the continent from other parts of the world.
In some countries, homosexuality is punishable by death while others have imposed life imprisonment and jail term punishment for those found practicing it.
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Interestingly, most scholarship and research demonstrates that homosexuality has long been a part of various African cultures.
Most of LGBT refugees in the Eastern Africa run to Kenya for protection but still cry discrimination from homophobic refugees in the camps.
The refugees have expressed that Kenyans are more tolerant on their sexual orientation compared to their home countries where they live in constant fear for their lives.
In July 2015, President Uhuru Kenyatta openly challenged the former US President Barrack Obama on the rights and freedoms of LGBT in the country with the former arguing that, “This issue (homosexuality) is a not an issue that is in the foremost mind of Kenyan.”
President Uhuru echoed the same views in April 2018 while in an interview with CNN citing that the issue (homosexuality) is about the society and the people of Kenya who have, through the voted 2010 constitution, rejected the practice.
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“I will not engage in subject that is of no importance to the people of Kenya. This is an issue of the society of our own base as a culture and people irregardless of the community they come from. This is not acceptable, this is not agreeable,” said Mr Kenyatta.
The people of Kenya have bestowed upon themselves a constitution that clearly states that this is not a subject that they are willing to engage in, at this time or moment,” he added.
However, early this year, the Court of Appeal granted the LGBTQ members a lee way to register their own umbrella lobby.
The Court stated that held that human beings should not be denied their fundamental rights because of how they choose to live their lives.
“The issue of LGBT is rarely discussed in public. But it cannot be doubted that it is an emotive issue, the reality is that this group does exit and we can no longer deny that,” said Justice Philip Waki.
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