The High Court of Kenya has dismissed a plea challenging provisions in Kenya's Penal Code similar to Section 377 IPC which criminalizes private consensual sexual conduct between adult persons of the same sex.
According to reports, the High court unanimously held that there is no substantial evidence to show that the LGBTIQ community are discriminated and their rights violated. One judge has reportedly observed that it is the court's duty to respect the prevailing national values.
Section 162 of the Kenyan Penal Code titled as 'Unnatural offences' reads: Any person who—(a)-has carnal knowledge of any person against the order of nature; 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 of the Kenyan Penal Code 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."
Challenging these provisions, one Eric Gitari, a human rights lawyer, queer activist [Executive Director of the National Gay and Lesbian Human Rights Commission] had approached the High Court contending that violates the rights of persons who form part of the Lesbian, Gay, Bi-sexual, Transgender, Intersex and Queer (LGBTIQ) community. It make LGBTIQ persons in Kenya perpetually exposed to risk of arrest, prosecution, denial of liberty, intimidation and mistreatment, it was contended.
The Government had taken a stand that though it does not support discrimination against the LGBTIQ community, same sex acts, are still considered as offences and as acts that are contrary to culture and the society's morals.
Indian SC Decriminalized Homosexuality
In September 2018, the Supreme Court of India had struck down a 157 year old law which criminalizes consensual homo sexual acts between adults. The Five Judge Constitution Bench declared Section 377 IPC unconstitutional, insofar as it criminalises consensual sexual acts of adults in private.
Although the judgment of the High Court of Kenya is yet to be accessed, going by the reports, it appears that, it has adopted a reasoning similar to one by the Indian Supreme Court in Suresh Kumar Koushal. It was observed therein that Section 377 IPC does not criminalize a particular people or identity or orientation and it merely identifies certain acts which if committed would constitute an offence. This judgment was overruled by the Constitution bench in Navtej Singh Johar.
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