Kenya could make history by legalising homosexuality

Friday, 18 January 2019 10:00 GMT

A member of the LGBT community lights a candle to pay tribute to the victims of the mass shooting at the Pulse gay nightclub in Orlando, U.S., in Kenya's capital Nairobi June 14, 2016. REUTERS/Thomas Mukoya

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

The East African country has a historic opportunity to bring persecution to an end

Téa Braun is the director of Human Dignity Trust

In Kenya, February 22 2019 could be an anniversary remembered for generations.

This is the date on which a three-judge bench at the Constitutional Court in Nairobi will give Kenyans – and the world – their decision on whether laws that criminalise the private, consensual relations of people of the same sex are to be scrapped. 

The case, heard in February 2018, was brought by Eric Gitari, until recently the executive director of the National Gay and Lesbian Human Rights Commission, a local rights organisation that provides free legal aid services to Kenya’s persecuted LGBT+ community. 

If the Kenyan judges’ decision is, as we all hope, to end this state-sanctioned discrimination against LGBT+ people, it will be seismic. 

Like the ground-breaking ruling in India in September 2018, with this case comes the opportunity to draw to a close a long history of persecution. 

Reverberations from a positive ruling would also be felt far outside the country’s borders. A progressive move by such a major African democracy, with significant influence on the continent and beyond, would be another high-water mark in history for humanity.

The symbolism of the Indian and Kenyan cases coming in such close proximity is considerable. The two countries’ criminal laws are close cousins: shortly after the British colonised Kenya in 1895, they imported legislation that included elements of the 1860 Indian Penal Code, including its outlawing of consensual same-sex intimacy. 

Though Kenya gained independence a full 16 years after India, their respective post-independence dismantling of these relic laws could come in rapid succession. If that happens, they will long be celebrated as the twin victories of two major global south countries, achieved on their own terms by their own independent courts. 

That these laws have to go is evident. They have a wide and insidious reach, much beyond their open invitation to arrest and detain. While, unlike neighbouring Uganda, there have been no additional laws created to further persecute the LGBT+ community in Kenya, reports of violence are common and not hard to find.

Under Kenyan law, gay men are explicitly targeted. These provisions, and the message they send to society, routinely lead to harassment, threats, blackmail, violence and sexual assault against members of the wider Kenyan gay and transgender community. 

Speaking after the date for judgment was set in October last year, Njeri Gateru, the current executive director of National Gay and Lesbian Human Rights Commission said:

“These colonial legacy laws undermine LGBT people’s fundamental rights as enshrined in our Constitution, and ostracise them from society, causing misery and isolation, and devastating their lives.”

This small civil society organisation is to be congratulated for what it has already achieved, even before knowing the outcome.

The everyday reality of using litigation as a tool to assert one’s rights can be difficult and all-consuming. It requires months and often years of preparations by groups with stretched resources, working sensitively with and for very vulnerable constituencies. Reasoned legal arguments are toiled over by passionate activists and trained legal minds for months, before their one precious chance to persuade, after which they hang in the air, awaiting judgment.

There are just weeks to go, and many reasons to be hopeful.

The successful Indian case, following a groundswell of popular support from an over-ready Indian public, produced a powerful legal precedent just in time to be considered in Kenya. It is possible that we will be able to say the same about Gitari’s Kenyan case before long. There are activists in many countries (73 to be exact) whose path to justice may be made smoother – and whose resolve will certainly be bolstered – by a positive result in February.

The two men and one woman delivering this judgment have the opportunity to alter the course of history; let us hope they fall on the right side of it.

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