(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
On August 27, 2010, Kenya adopted a new Constitution, guaranteeing fundamental human rights and freedoms. In addition, Kenya is party to many international treaties that have been incorporated into the new constitution. Kenya is also enshrining international human rights standards by directly incorporating them into Kenyan domestic law, as stipulated in Article 2(6) of the Constitution. Although the Constitution employs a more progressive stance, LGBTI persons in Kenya continue to be the target of sexual violence, physical and verbal abuse, and social exclusion. Moreover, Article 45 (2) of the constitution discriminates against same-sex marriage. LGBTI persons are not protected against discrimination under Kenyan law. Homosexual conduct is illegal, and accordingly the right to equality under Article 27 (4) of the Constitution does not include either sexual orientation or gender identity.
Kenya has colonial-era sodomy laws that are still in force. Under section 162 of the Kenyan Penal Code sodomy is punishable with a fourteen year jail sentence. Section 163 defines any attempt to commit an ‘unnatural offense’ as a crime with a seven year prison term. Persons punishable for committing an 'unnatural offense' under Section 163 are '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'. Consensual sexual conduct between men is also prohibited under section 165, which carries a five year prison term. However, the Penal Code does not seem to statutorily ban female-female same-sex acts. Although not expressly mentioned in the Penal Code, the language of the law and the interpretation of the term 'against the order of nature' can nevertheless constitute a serious threat for lesbian and bisexual women (see below the case Ali Abdi Shabura v. Republic).
Sexual Offences Act 2006
The Sexual Offences Act 2006 directs the law on sexual offences in Kenya. It was enacted in order to prevent and protect all persons from unlawful sexual acts and does not mention same-sex relations. As opposed to the Penal Code which provided for maximum sentences for sexual offences, the 2006 Act contains more minimal mandatory prison terms on specific sexual offences.
The domestic laws in place legitimize homophobia, and cause social exclusion and deprivation of fundamental human rights for LGBTI persons in Kenya. In 2013 the Kenyan Civil Society Organisations presented a report to the Committee Against Torture (CAT) stating that LGBTI persons in Kenya face constant harassment, violence and death threats by police officials, who also blackmail LGBTI persons with threats of arrest if they refuse to pay bribes. Anti-sodomy laws enable abuse that escalates to a degree of torture under CAT, thus violating Kenya’s obligations under CAT and its new Constitution.
According to the Kenyan Human Rights Commission report (The Outlawed Amongst Us), transgender and intersex individuals are unable to self-determine their gender due to the inadequate legal framework. The government’s failure to address heteronormativity and fixed gender binaries have resulted in State sanctioned homophobia.
Absence of progressive laws has socially marginalised transgender individuals and permitted ill-treatment by state officials. Most intersex individuals either have corrective surgeries performed at birth by their parents or are not given the chance to undergo a sex reassignment surgery when they are of age due to the lack of legal recognition for sex reassignments. In addition, a legal mechanism to change one’s name and personal details in identity documents remains absent.
In this case the High Court held that it was acceptable for an intersex person to be confined separately from other prisoners in detention and that solitary confinement was lawful as there was no suitable room available for RM during the criminal trial. However, damages were granted under inhuman and degrading treatment, given that the guards had deliberately exposed the petitioner’s genitalia in the presence of other persons. The High Court ruled that the petitioner did not face discrimination or lack of legal recognition from having to be registered as either male or female and there was no need to create a third gender category.
This case concerns the right to inheritance in marriages between women under the Nandi tradition. The High Court affirmed the right of Inheritance to Monica Jesang who was a beneficiary of the estate of Cherotich Kimong’ony Kibserea (deceased). The High Court at Mombasa in deciding the case upheld customary law by observing that the Nandi were to rightly claim protection under Article 11 (1) of the 2010 Constitution of Kenya, which recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people.
Even though this is a case of sexual acts committed by a man on two young boys, the High Court of Kenya at Nakuru observed that '[T]he offence of having carnal knowledge of any person “means to have sexual relationship with another person. The phrase “against the order of nature” means “sexual intercourse or copulation between man or woman in the same sex, or either of them with a beast”'. Thus, whereas the case did not concern lesbian and bisexual women, it illustrates the potential risks that the vague criminal language can pose to their lives.
This is the case where the High Court ordered the Kenyan National Examination Council (KNEC) to issue Audrey Mbugua Ithibu, (a transgender woman, formerly Andrew Mbugua) new examination certificates bearing no gender mark within 45 days.
This is the case of an intersex child who had been denied a birth certificate by the hospital, as the staff had been unable to determine the child's sex. The High Court of Kenya at Nairobi held that under the Constitution, the Children’s Act, and the international treaties to which Kenya is a party, children are protected against all forms of discrimination, including on the grounds of intersex status. The Court ordered the government to develop guidelines for the recognition and support of intersex people.
The High Court of Kenya ruled that the members of the LGBT rights group National Gay and Lesbian Human Rights Commission (NGLHRC) could formally register their organization under the Non-Governmental Organizations Coordination Board Act. In March 2013, the Non-Governmental Organizations Coordination Board had rejected the group’s request to register because the name of the organization was 'unacceptable', and because Kenya’s penal code 'criminalizes gay and lesbian liaisons'.
Constitutional Petition by C.O.I. & G.M.N. against Forced Anal Examination [presented 4 May 2016, pending]
Two men accused of homosexuality have filed a constitutional petition in order to challenge the use of forced anal examinations. According to the men, doctors at Mombasa’s Coast General Provincial Hospital (known as Madaraka Hospital) and law enforcement officials violated their rights by subjecting them to forced anal examinations while they were in police custody on charges related to homosexual conduct in 2015. The High Court in Mombasa has given one week to government lawyers to respond.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
Treatment by Authorities
Numerous Kenyan politicians and religious leaders believe that homosexuality is a Western import and against African norms and traditions. Religious leaders have an important role in the society, and religious groups have hindered the advancement of LGBTI rights, for instance opposing the registration of the National Gay and Lesbian Human Rights Commission to the NGO board. Negative social attitudes towards LGBTI individuals are common to the extent that the Kenya Medical Research Institute (KEMRI) providing HIV/AIDS services was the target of vigilante attacks motivated by conservative and religious values in 2010. Human Rights Watch wrote an open letter to the Government of Kenya in relation to the attacks, emphasising that such acts violate the ICCPR’s provisions for protection of private life and protection against discrimination.
In 2010 Prime Minister Ralia Odinga commented that same-sex relationships are outlawed in the new Constitution because marriage is defined as being between a man and a woman. Moreover, in 2014, Aden Duale, a leading Kenyan MP said that homosexuality is 'as serious as terrorism' in response to a group of MPs demanding tougher laws on homosexuality. The Deputy President, William Ruto has also repeatedly issued homophobic statements against LGBTI persons, the most recent in May 2015 at a church service saying there is ‘no room for homosexuality in Kenyan society’.
LGBTI persons in Kenya also face harassment and abuse by police officials who charge LGBTI persons with false allegations and hold them in ‘remand houses’ with no explanation of the charges against them. In another instance, a Police Constable interviewed by the Kenya Human Rights Commission stated that ‘all homosexuals are criminals and rapists’.
Gay individuals face discrimination in accessing health care due to high prevalence of HIV amongst men which is almost three times higher than in the general population. Because sexual relations between men are criminalised, LGBTI persons avoid seeking help with HIV services. Practitioners often deny HIV care to LGBTI patients and at times breach their privacy by exposing them to police officials. As such, these individuals will often self-medicate or even lie to doctors, resulting in incorrect treatment.
Prejudice and lack of legal protections together contribute to a climate where LGBTI persons are disproportionately vulnerable to physical violence, verbal abuse, the destruction of property, as well as discrimination in access to public services – including healthcare in particular – and employment. Many LGBTI people feel they cannot be open about their sexual orientation or gender identity, because they fear violence, harassment and discrimination. Traditional social and religious attitudes play a significant role in perpetuating homophobia and transphobia in Kenya where 90% of the population believe that homosexuality should not to be accepted by society. Lesbians in addition suffer discrimination from their family members, as parents who find out that their daughter is a lesbian may withdraw educational support. Openly gay and transgender people are vulnerable to physical violence, harassment and intimidation.
In Kenya, MSM (men who have sex with men) residing in informal settlements and slums face more direct verbal abuse, such as the derogatory word ‘shoga’ which means gay in Swahili. Even in the more exclusive areas of Kenya the word is used as a discriminatory term against LGBTI persons. The stigmatization of LGBTI Kenyans often begins at home in their families.
In April 2016 the NGO National Gay and Lesbian Human Rights Commission (NGLHRC) filed a lawsuit challenging Kenyan law against same-sex conducts between consenting adults. The case will be heard by the Constitutional and Human Rights Division of the High Court in the capital, Nairobi, the Associated Press reports. As a security precaution the NGLHRC announced the closure of its office for a week.
Kenya receives a large number of LGBTI refugees from across the region, especially Uganda, since the enactment of the Anti-Homosexuality Act in February 2014. As such, the refugees at the refugee camp in Kenya automatically assume that all newly arriving Ugandan refugees are LBGTI persons, giving rise to harassment by other refugee residents. In general, LGBTI refugees fleeing to Kenya face further violence, exploitation and stigmatization when they arrive. Therefore, LGBTI refugees often choose not to reveal their sexual orientation.
In addition, most Kenyan refugee-assistance NGOs are unaware of the specific protection needs of LGBTI refugee, who are referred by asylum authorities. As a result, many LGBTI refugees in Kenya face the risk of being excluded from services that would allow them to expand outreach and identification. Although UNHCR tries to rapidly answer protection needs of LGBTI refugees, it fails to combat homophobic attitudes among protection agents in Kenya.
The LGBTI refugees who claim asylum on the basis of their membership of a particular social group via the RSD procedure conducted by the UNHCR are eligible to receive international legal protection through resettlement. However, since October 2013 the responsibility for RSD processes has been transferred to the Department for Refugee Affairs (DRA) under the Refugees Act 2006, which raises concerns for upholding current RSD policies.
Nonetheless, the U.S. Refugee Admissions Program (USRAP) reviews LGBTI resettlement cases on an expedited basis. However, the resettlement process can take between 12 to 18 months, on top of already waiting for several years before the resettlement process is started.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
P.O.BOX 13005-00100, Nairobi, Kenya
Tel: +254-020 2497228
Email: infoishtarmsm [dot] org
Director: Peter N. Njane
Email: directorishtarmsm [dot] org or pnjaneishtarmsm [dot] org or pnjoro2002yahoo [dot] com
Tel: +25 47 21 95 25 70
Administrative contact: Jeffrey K. Musa, Communication and Mobilization Manager
Email: communicationsishtarmsm [dot] org or jeffreymishtarmsm [dot] org or jeffreym162gmail [dot] com
Tel: +254724034964 or +25 47 13 79 71 57 (mobile)
Ishtar MSM is a community based organization that advances sexual health rights of men that have sex with men to reduce the stigma and discrimination aliened with them by creating awareness with the aim of advocating for their rights to access health care, including STI/HIV and AIDS related care and treatment. Ishtar-MSM is a member group of The Gay & Lesbian Coalition of Kenya (GALCK).
Ishtar MSM was formed in the year 1997 when the founders and members did a play by the Name “Cleopatra” at the Kenya National Theater. Majority of them were Male Sex Workers and later formed Ishtar as a support group. They would come together and help each other in various ways like bailing each other and moral support. After 1999 they registered the organization as self help group under the ministry of Home affairs, heritage and sports to create awareness to the members in HIV/AIDS prevention, care & treatment.
In the 2003 through new leadership and members the organization included holistically all MSM (Men who have sex with men) and the initial members the Male sex workers were part Ishtar’s programmes.
Currently Ishtar has 300 registered members and the organization operates from Nairobi.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently list a specialist on LGBTI issues in Kenya, but we welcome suggestions.
Researched by: Fatima Hashmi
Email: fhashmi79gmail [dot] com