Kenya set to rule on decriminalising homosexuality

Kenya’s high court is expected to rule on Friday on whether to abolish laws making homosexuality illegal, in a decision that could have huge ramifications across the region.

A repeal of the colonial-era laws would make Kenya the first country in east Africa to decriminalise homosexuality.

Mercy Njueh, of Kenya's National Gay and Lesbian Human Rights Commission, said the LGBT+ community was cautiously optimistic ahead of the ruling.

“It will mean inclusion, it will mean having the law affirming our existence, our Kenyan-ness, our humanness. While it will not change the social construct overnight, having the law on our side would be a big step towards that. Further, a positive ruling is bound to set a precedent for other countries that they can look up to,” she said.

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Ms Njueh said decriminalisation wouldn’t be the end of the fight. “We still have to sensitise the community and the society at large on the need for tolerance and respect of the rights of the sexual and gender minorities in Kenya – the need to embrace our diversity, not condemn our difference.”

Although gay sex is punishable by up to 14 years in prison, Kenya has recently been a destination for LGBT+ people escaping persecution in neighbouring countries.

Herbert (32), a gay refugee who fled to Kenya after the passage of Uganda’s 2014 tough anti-homosexuality law, said he was excited about Friday’s decision, which he said could be a “milestone”.

“I’ll be present at the court, and if the ruling favours us we won’t hide our excitement. Despite being a refugee it will make me happy for the LGBTI community here in Kenya,” Herbert said. “It wouldn’t be criminal any more to be what I am.”

Constitutional rights

Court hearings began in 2018, two years after three Kenyan gay rights organisations filed petitions, arguing that the current anti-homosexuality laws violated constitutional rights to privacy, health, human dignity and the right to freedom from discrimination.

"Laws criminalising gay conduct are clearly discriminatory and should long have been repealed," said Otsieno Namwaya, Kenya researcher for Human Rights Watch. "Any other decision of the court that fails to recognise this fact will definitely be a clawback on recent gains on LGBTI rights in Kenya."

"The decision will be the first of its kind on the African continent since 1998, when South Africa scrapped similarly discriminatory laws that targeted LGBT people," said Tim Otty, the founder of the Human Dignity Trust, a charity that uses legal means to defend the human rights of LGBT+ people globally.

“Kenya has the chance to lead the way for the 72 other jurisdictions worldwide which still have laws that make criminals out of ordinary LGBT citizens,” he said.

The high court ruling will come three days after the death of Kenyan writer and LGBT+ activist Binyavanga Wainaina (48), who came out publicly in 2014 in response to growing anti-gay sentiment in east Africa.

Later that year he was listed as one of Time magazine's 100 "most influential people", with Nigerian author Chimamanda Ngozi Adichie writing that he had "demystified and humanised homosexuality".