High Court postpones ruling on decriminalising homosexuality

The High Court has postponed the ruling on whether to scrap colonial-era laws which criminalise homosexuality.

The ruling by Justices Roselyne Aburili, John Mativo and Chacha Mwita will now be issued in May, according to Justice Mwita who told the applicants that the judgement is not ready.

Convictions under the decades-old laws are rare, but gay activists say the legislation — which carries long jail terms for sexual acts deemed “against the order of nature” — is unconstitutional and fuels homophobic persecution.

The ruling follows petitions filed by rights organisations in 2016, and which are being contested by a Christian organisation.

Kenya’s anti-gay legislation is reflected in more than half of the countries in sub-Saharan Africa where laws, often vague, punish same-sex contact or relationships.

Activists believe the court has a chance to blaze a trail on a continent where homophobia is virulent in many communities.

“These crimes are considered felonies… very, very violent dangerous crimes to society,” said Eric Gitari, the co-founder of the National Gay and Lesbian Human Rights Council (NGLHRC), one of the petitioners.

A section of Kenya’s penal code states that anyone who has “carnal knowledge… against the order of nature” can be imprisoned for 14 years. Another provides for a five-year jail term for “indecent practices between males”.

“The law specifies ‘in public or private’ which essentially allows police to enter our bedrooms to investigate these crimes,” said Gitari.

– ‘Unconstitutional’ –

Imani Kimiri of the NGLHRC’s legal team, told AFP her office dealt with 15 prosecutions under the laws in 2018, but cannot recall the last conviction — slamming the process as “just a frustrating endeavour”.

The petitioners argue that under Kenya’s 2010 constitution every person is said to be equal before the law — a protection directly contradicted by the disputed sections of the penal code.

Those who are blackmailed, evicted, fired, expelled from school, or assaulted over their sexual orientation, are unable to access justice because it means “confessing to a crime”, said Gitari.

He pointed to court decisions last year as cause for optimism.

In March, the High Court banned forced anal testing of men suspected of being gay.

And in September, a court ruled that “Rafiki” (friend), a film about a lesbian love affair which was the first Kenyan movie to be shown at the Cannes film festival, could be screened domestically for seven days after its initial banning.

The court’s decision Friday could have repercussions for the rest of Africa, where several countries are facing challenges to similar legislation.

Mozambique struck down anti-gay laws in 2015, and Angola decriminalised homosexuality in January. Botswana is expected to hear a case against its laws in March.

– ‘The West made a mistake’ –

Charles Kanjama, the lawyer for an association of Catholics, Protestants and Evangelicals fighting the decriminalisation, claimed the vast majority of Kenyans oppose “gay behaviour”.

“We believe very strongly that gay behaviour is a moral perversion, a sexual perversion. We believe it is behaviour which is harmful to the individual, to the family,” he told AFP.

“For Western minds, the question is why should you bother, if what I do doesn’t harm you. For us, we understand we are inter-connected people.”

He said the “bedroom is not an inviolable sanctum” and compared homosexuality to crimes such as bestiality, child rape, and incest.

Even if the laws are scrapped, the West and humankind as a whole will eventually “realise they made a mistake” in embracing homosexuality, said Kanjama, comparing this to slavery or Hitler’s ideas of “racial superiority”.

“It is not a question of whether with time our culture will change, it may, but it is a question of what is right.”
Kanjama said that no matter the outcome Friday: “I am confident that whichever side loses is likely to file an appeal.” 
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