OPINION: Kenya’s decision to continue criminalising same-sex relations is absurd and dangerous

by Jessica Stern | OutRight Action International
Tuesday, 4 June 2019 08:59 GMT

A note in tribute of Kenyan author and LGBT activist Binyavanga Wainaina, who died in Nairobi last week at the age of 48, is seen during a memorial service at the Nairobi national museum in Nairobi, Kenya, May 30, 2019. REUTERS/Baz Ratner

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

The Kenyan judges' arguments were ripe with inconsistencies and logical flaws

Jessica Stern is executive director of OutRight Action International

To say that I was disappointed by the outcome of Kenya’s High Court, which ruled on Friday May 24, to maintain sections 162 and 165 of the Penal Code, criminalising “carnal knowledge against the order of nature”, would be an understatement. The decision is out of sync with the recent trend of rulings in other jurisdictions, such as India and Trinidad and Tobago, which have moved to abolish these barbaric colonial-era relics.

But more than that, I was gobsmacked by the absurd, misleading basis of the ruling that has no place anywhere, let alone a courtroom.

In the two-hour long ruling the judges claimed that the laws that criminalise same-sex sexual activity are not discriminatory because the wording of the clause says “any person”, and, as such, does not apply to a specific group of people.

Additionally, the court found no violation of the right to privacy or human dignity, stating that both rights are subject to cultural and historical values of the Constitution. Ultimately, the petition to abolish sections 162 and 165 of the Penal Code was dismissed because:

“Decriminalising the impugned provisions would indirectly open the door for unions among persons of the same sex. If this were to be allowed, it would be in direct conflict with Article 45 [of the constitution, which defines marriage as between persons of the opposite sex].”

These arguments are ripe with inconsistencies and logical flaws. The judges stated that the respective provisions don’t target LGBT+ people because the wording specifies “any person” (even though LGBT+ people are the primary target in its implementation). At the same time, they dismissed the case because abolishing the articles would indirectly open the door to same-sex marriage. If LGBT+ people are not expressly targeted by these laws, how can abolishing them lead to equal marriage?

The use of foreign case law was also curious. On the one hand, landmark cases such as Johar vs India, Dudgeon vs UK, Norris vs Ireland, Orozco vs Belize and others that decriminalised same-sex relations were quoted. The European Court of Human Rights and various UN precedents were also referenced. Yet, the court concluded that “it is important to appreciate that foreign case law will not always provide a safe guide for interpretation of our constitution”, thus implying that international case law is dangerous to the Kenyan constitution, and using the cases that achieved progress in their respective jurisdictions, to do the opposite – to halt it.

Despite highlighting that human dignity is a central theme of Kenya’s constitutional values and a right that cannot be derogated from, the judges contradicted themselves, saying that the rights to dignity and privacy are conditional upon the cultural and historic values of the constitution. They essentially said that intimacy is the business of the state if it somehow falls outside what that state defines as the norm.

The court was correct in its assessment that there is divided opinion about same-sex marriage, but this case was not about marriage. Dismissing a petition to decriminalise same-sex relations because it may, one day, indirectly, open the door to petitions for equal marriage assumes that all LGBT+ people want marriage (we don’t!) and fails to consider the case at hand in favour of an arbitrary future.

This is absurd.

Crucially, it sets conditions on the human rights of LGBT+ people – as long as you deny who you are and who you love, remain celibate or accept a heterosexual lifestyle, you’re protected by law and the constitution.

Otherwise – tough luck.

I fear that the ruling is symptomatic of the broader attack on human rights, and the more specific attacks on our LGBT+ communities that have been increasing globally in recent years. This decision undermines human rights, argues they are conditional and subject to an arbitrary set of values.

The ruling was not rooted in law; it was rooted in prejudice. When courts rule based on arbitrary, undefined values, they not only deny basic human rights protection to LGBT+ people, they deny human rights to anyone and everyone who doesn't fit the narrowly defined norm.