Kenya

Summary

Homosexual sex is criminalised under Kenyan law as an “unnatural offence”, punishable by imprisonment for up to fourteen years under a Penal Code inherited from British Colonial rule. The Kenya Human Rights Commission has reported that even though few convictions take place under the Penal Code provisions, LGBT persons are routinely harassed by the police, held in remand houses beyond the constitutional period and presented in court with trumped-up charges against them.

Legal Provisions

Punitive Provisions

The Kenya Penal Code (Chapter 63) criminalises homosexual sex under Chapter XV of the Code “Offences against morality”:

162 Unnatural offences

Any person who­—

(a) has carnal knowledge of any person against the order of nature;

(c) permits a male person to have carnal knowledge of him or her against the order of nature

is guilty of a felony and is liable to imprisonment for fourteen years:

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if—

(i) the offence was committed without the consent of the person who was carnally known; or

(ii) the offence was committed with that person’s consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.

163 Attempt to commit unnatural offences

Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.

165       Indecent practices between males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.”

Recognition of same-sex relationships

Generally, same sex relationships are not recognized in law in terms of marriage or civil unions. Traditional marriages between women are, however, recognised in certain communities (see below).

Adoption

A person who is homosexual may not adopt children.

Military service

Gays and lesbians are not permitted to serve openly in the military.

Discrimination

A new Constitution was adopted in 2010.The drafters decided not to include explicit protection of LGBT rights because they believed that this would cause the public to reject the draft constitution. The Kenyan Constitution nevertheless prohibits discrimination on any ground in terms of Article 27. In Transgender Education and Advocacy v NGO Co-ordination Board (see below) the High Court held that to discriminate against persons on the basis of gender or sex is clearly unconstitutional.

Legal Decisions

Republic v Non-Governmental Organizations Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 others [2014] eKLR

A group formed with the objective of advocating for the rights of transsexuals in Kenya applied to be registered as an international non-governmental organization with the NGO Coordination Board in March 2013. The Board confirmed that the name which the group intended on reserving was available. The group proceeded to pay the registration fee and met all the other requirements, but the Board nevertheless refused to register them.

The group instituted proceedings in the High Court, where it was held that:

“…to discriminate persons and deny them freedom of association on the basis of gender or sex is clearly unconstitutional. That would contravene the provisions of Article 27(4) of the Constitution which provides that the State shall not discriminate directly or indirectly against any person on any ground…”

The High Court also held that the Board’s refusal to register the group as an NGO and their failure to give reasons for their inaction infringed upon their right to expeditious and reasonable administrative action. The Board was ordered to register Transgender Education and Advocacy as an NGO.

Important Events

October 2009: The first public gay wedding between two Kenyans took place in the United Kingdom and caused uproar in the country.

June 2011: Muslim leaders called for the death penalty to be imposed on homosexuals. The organising secretary of the Council of Imams and Preachers of Kenya encouraged the public to shun businesses owned by people who engage in same-sex acts and to openly discriminate against them. The Kisauni Islamic College principal publically blamed inflation and drought on people who engage in same-sex acts.

September 2011: The Chief Justice of the Supreme Court of Kenya, Hon. Justice Willy Mutunga stated in a speech made at FIDA-Uganda that gay rights are human rights and that human rights cannot be implemented selectively.

February 2012: An educational seminar for men who have sex with men, organised by the Kenya NGO Consortium and Constitutional AIDS Control Council, was stormed by a mob of 100 people. Five of the 30 participants were held captive in the Likoni CDF Youth Empowerment and Library Centre until the police boss and district officer ordered everyone to vacate the premises.  The religious leaders and village elders who lead the mob claimed that the workshop was not in line with the educational and empowerment purposes for which the Centre was established.

June 2012: The United States Embassy in Nairobi hosted the country’s first   gay pride event.

March 2014: A parliamentary caucus was formed in order to devise ways to enforce Kenya’s anti-sodomy laws and to “combat homosexuality” in the country.

August 2014: A bill calling for extreme punishment for acts of sodomy and “aggravated homosexuality” was introduced in the Kenya National Assembly by a member of the Republican Liberal Party. The bill was, however, found to be unconstitutional and rejected by parliament’s Committee on Justice and Legal Affairs.

October 2014: In 2013, the National Gay and Lesbian Commission’s application for registration was denied by the NGO Co-ordination Board because its name was deemed to be “unacceptable”. This refusal has been challenged in the constitutional and judicial review division of the High Court. Considering that the High Court found that the Board’s refusal to register a transgender organisation breached the constitutional prohibition on discrimination, a positive outcome can be expected for this case.

October 2014: A film called “Stories of Our Lives” in which the life of Kenya’s LGBT community is explored was barred from screening and distribution inside the country by the Kenyan Film Classification Board. The Board ruled that the film promotes homosexuality which is contrary to the country’s norms and values.

Interesting Facts

Among certain Kenyan communities, it is customary for a woman who is unable to have children to marry a younger woman. The older woman would take on the traditional male role in the marriage by providing a home and an inheritance for her partner. In turn, the younger woman is encouraged to take a male sexual partner from her partner’s clan in order to become pregnant. The children born into such a union are considered to be the children of both women and the identity of the biological father is kept secret. In June 2011, the High Court in Mombasa held that Nandi customary law entitled a woman who was married to another woman to take over her late “husband’s” estate.

Civil Society Organisations in LGBT Issues

African Artists For Recognition and Acceptance (AFRA Kenya)

E-mail: info@afra-kenya.org

Website: www.afra-kenya.org

GALCK (Gay and Lesbian Coalition of Kenya)

Postal Address: P.O. Box 13005-00100, Nairobi, Kenya

Tel. (+254) 020 2426060, (+254) 734133733
E-mail: info@galck.org

Website: www.galck.org

Gay Kenya Trust

Tel: (+254) 707 046 805

E-mail: wothaya@gaykenya.com

Website: www.gaykenya.com

Health Options for Young Men on HIV/AIDS and STIs (HOYMAS Kenya)

E-mail: info@hoymas.org

Website: www.hoymas.org

Twitter: https://twitter.com/hoymask

Ishtar MSM

Postal Address: P.O. BOX 13005-00100, Nairobi, KENYA

Tel: +254-020 2497228

Email: info@ishtarmsm.org

Website: www.ishtarmsm.org

Kenya Campus Ladies Association (KCLA) (formerly Les Bos)

E-mail: lesbos@vijana.org

Website: www.lesbos.vijana.org

Kenya Youth Development and Education Support Association (KYDESA)

E-mail: kayadesa@gmail.com

Facebook: http://www.facebook.com/kydesa.nakuru

Minority Women in Action (MWA)

E-mail: info@minoritywomeninaction.ac.ke

Website: www.minoritywomeninaction.ac.ke

National Gay and Lesbian Human Rights Commission

Facebook: https://www.facebook.com/NGLHRC/timeline

Twitter: https://twitter.com/nglhrc

Persons Marginalised and Aggrieved (PEMA Kenya)

E-mail: pemakenya@gmail.com

Website: http://pemakenya.kbo.co.ke

Q-Initiative (Eldoret, Uasin Gishu County)

E-mail: qinitiativeeldoret@gmail.com

Tampa Pwani (Kilifi County)

E-mail: tambapwani@yahoo.com

Transgender Education and Advocacy

Postal Address: P. O. Box 52418-00200 GPO

E-mail: info@trangenderkenya.com

Website: www.trangenderkenya.com

UHAI

E-mail: info@uhai-eashri.org

Website: www.uhai-eashri.org

Upper Rift Minorities (URM) (North-Western Kenya)

Email: upperriftminorities@gmail.com

USAWA Kwa Wote Initiative (UKWELI) (Mombasa)

E-mail: Lawrence_wambua@yahoo.com