Kenya’s top court upholds colonial-era ban on gay sex
NAIROBI, Kenya — Kenya’s High Court on Friday upheld laws that criminalize gay sex, declining to join the handful of nations that have recently abolished a prohibition imposed by Britain during the colonial era.
The unanimous ruling by a three-judge panel of the court, announced in a courtroom packed with activists who wanted to see the laws overturned, keeps Kenya aligned with most of Africa. Anti-gay laws and conservative cultural mores remain prevalent across most of the continent. In addition to the threat of prosecution, discrimination and violence against lesbian, gay, bisexual and transgender people are common.
“A sad day for the rule of law and human rights,” said Eric Gitari, a co-founder of the National Gay and Lesbian Human Rights Commission, a Kenyan civil rights group, who was one of the petitioners in the case.
He said he and others would appeal the ruling.
Téa Braun, director of the Human Dignity Trust, an international gay rights advocacy group, noted in a statement that Kenya’s constitution guarantees human dignity and freedom from discrimination.
“Yet in handing down this disappointing judgment, the court has ruled that a certain sector of society is undeserving of those rights,” she said.
The Kenyan ruling came on the same day that Taiwan had its first same-sex weddings, which were legalized last week by the legislature.
More than 70 countries criminalize gay sex, most of them Muslim countries or former British colonies, according to advocacy groups.
In the 19th century, British colonial rulers — far more than their counterparts from other European countries — outlawed same-sex relations in dozens of colonies on multiple continents. After gaining independence, most of those nations kept the bans in place, often using a version of the Victorian language the British had left.
At a meeting last year of Commonwealth heads of state, Prime Minister Theresa May said Britain regretted that history, and she urged other nations to change their laws. Britain did not repeal its law against homosexual acts in England and Wales until 1967, with similar laws repealed later in Scotland and Northern Ireland. In the United States, gay sex was illegal in 13 states until a Supreme Court ruling in 2003.
The highest courts in three nations that were once part of the British Empire have recently struck down such laws: Belize in 2016, Trinidad and Tobago in April 2017 and India last September. A court case in Botswana is pending.
But other former British colonies, particularly Uganda, have become more harsh in pursuing discrimination and punishment for gay sex.
The sections of Kenya’s Penal Code upheld by the ruling Friday make it a felony to have “carnal knowledge of any person against the order of nature” or to commit “gross indecency.” The maximum sentence for various offenses range from five to 21 years in prison.