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Kenyan high court upholds ban on same-sex relations

May 24, 2019

A panel of three judges has said the constitution adequately protects LGBTQ people's rights. But activists and lawyers have criticized the ruling, saying it undermines protections guaranteed by the constitution.

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LGBTQ activists in rainbow masks at a protest in Kenya
Image: picture-alliance/AP Photo/B. Curtis

In a unanimous ruling, the Kenyan High Court upheld a colonial-era ban on same-sex relations on Friday.

"We find the impugned sections [of the penal code] are not unconstitutional," said presiding judge Roselyne Aburili. "We hereby decline the relief sought and dismiss the consolidated petition."

Activists and members of the LGBTQ community criticized the ruling, saying it marked a major blow in the fight for equal rights in Kenya.

"I'm really, really hurt by the decision," Nelly Aguda, who identifies as lesbian, told DW. "The case is about violence, it's not about marriage. It's about protections under Article 27 of the Constitution, which speaks about not being discriminated against on any grounds."

Article 27 states that "the State shall not discriminate directly or indirectly against any person on any ground."

Read more: Kenya's LGBT community fights for a place in society

The In-Between Gender Activist

'No basis'

Those who filed the petition to decriminalize the ban said they will appeal the ruling.

"We expect that the court of appeal will overturn this erroneous decision, which in our view is very biased," said Eric Gitari, one of the petitioners.

One of the sections punishes anyone who has "carnal knowledge … against the order of nature" with 14 years imprisonment. The other section prescribes a five-year jail term for "indecent practices between males." Activists argue that the colonial-era laws undermine Kenya's 2010 constitution.

"These are rights that are enshrined in the Constitution," Kenyan lawyer Justus Wabuko told DW. "There is really no basis for having same-sex sexual conduct criminalized in this day and age."

Read more: Gay, lesbian, queer — What is LGBT and LGBTTQQIAAP?

'Encourages hostility'

The UN's top human rights official, Michelle Bachelet, said the ruling threatens the LGBTQ community in Kenya, denying them access to healthcare, education and employment.

"Criminalizing acts targeting certain individuals based on who they are and whom they love is inherently discriminatory," Bachelet said. "It also sends a dangerous signal to broader society and encourages hostility and even violence against LGBT individuals."

Read more: Kenya court outlaws anal exams in landmark victory for gay rights

A Landmark Ruling?

ls/sms (Reuters, AFP)