LGBT+ Africans optimistic as Kenya set to rule on decriminalising gay sex

Wednesday February 20 2019

gay flag

The rainbow flag. Homosexuality is taboo in Kenya and persecution of sexual minorities is rife. Under sections of the penal code, gay sex is punishable by up to 14 years in jail. PHOTO | RAUL ARBOLEDA | AFP 

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There is a quiet air of excitement at the offices of the National Gay and Lesbian Human Rights Commission (NGLHRC), as the countdown draws closer to Friday when a much-awaited ruling by Kenya’s High Court could make history.

The charity has fought hundreds of cases of abuse against sexual minorities in Kenya’s courts, but the verdict on whether to scrap British colonial-era laws criminalizing gay sex is undoubtedly their most eagerly anticipated case.

“We are excited and cautiously optimistic - but optimistic nonetheless,” Lelei Cheruto from NGLHRC, one of the groups petitioning the court to decriminalize gay sex, told the Thomson Reuters Foundation.

“A positive ruling will mean sexual minorities in Kenya will have the freedom to exist. It will be a step toward their inclusion in society. We feel we have a very solid case.”

Homosexuality is taboo in the country and persecution of sexual minorities is rife.

Under sections of Kenya’s penal code, gay sex - or “carnal knowledge against the order of nature” - is punishable by up to 14 years in jail.

Campaigners say the laws have long promoted homophobia in the largely conservative Christian country - and are used daily to persecute and discriminate against sexual minorities.

They face prejudice in getting jobs, renting housing or seeking medical care or education.

Hate crimes like blackmail, extortion, physical and sexual assault are common - but most are too fearful to go to the police due to their sexual orientation, say rights groups.

A positive judgment would not only give rights and dignity to sexual minorities in Kenya, say campaigners, but will inject impetus into battles being waged by persecuted LGBT+ people Africa wide.

“People across the continent are watching the Kenyan case very closely,” said Anthony Oluoch from Pan Africa ILGA, a global charity advocating for the rights of sexual minorities.

“There are laws in many African countries that criminalise same-sex relationships, so if we get a positive ruling in Kenya it will give hope to the continent.”

#Loveishuman

Same-sex relationships are a crime in more than 70 countries around the world, almost half of them in Africa. South Africa is the only African nation to have legalized gay marriage.

The law against gay sex in Kenya - sections 162 and 165 - was introduced during British rule more than 120 years ago.

In 2010, Kenya adopted its new constitution, which provides for equality, human dignity and freedom from discrimination.

Petitioners now want the sections of the law repealed, saying they violate constitutional rights.

The Kenyan government, backed by powerful Christian groups, however is opposed to scrapping the ban on gay sex, have argued during court hearings last year that it will lead to same-sex marriage.

A three-judge bench of the High Court is expected to give its verdict on February 22. Both sides can appeal against the ruling in higher courts.

Since the date of the ruling was announced in October, LGBT+ activists across the world have been counting down the days on social media with hash tags such as #WeAreAllKenyans, #LoveIsHuman and #Repeal162.

“This judgment has real potential to change the lived experience of hundreds of thousands of people in Kenya,” said Tea Braun, director of the UK-based campaign group, the Human Dignity Trust.

“A positive verdict will declare that LGBT+ people are not criminals. It will be a reckoning for society where Kenya will show the world that it upholds the principals of freedom, liberty and justice.”

Campaigners say their optimism is justified - pointing to recent progressive rulings by courts as well as governments across the world supporting the rights of LGBT+ people - which they believe Kenya’s judges will consider.

In September, for example, India’s Supreme Court threw out similar colonial-era legislation in a landmark ruling in the world’s largest democracy.

Legal tolerance

More than half of the countries in sub-Saharan Africa have anti-homosexuality laws, although others have moved towards legal tolerance, watchdogs say.

Twenty-eight out of 49 countries have laws penalising same-sex relationships, according to Neela Ghoshal, a Human Rights Watch (HRW) specialist in lesbian, gay, bisexual, and transgender rights.

The death penalty is on the books, under sharia, in Mauritania, Sudan and northern Nigeria, although there have been no known executions in recent times.

In southern Somalia, gay men are believed to have been put to death in territory ruled by the Al Shabaab jihadist group.

However, Angola, Mozambique and Seychelles have scrapped anti-gay laws in recent years.

On the other hand, Chad and Uganda have introduced or toughened legislation.

Rights groups the colonial area rules represent a peril even in countries where they are not implemented, according to campaigners, as their existence on the statute books entrenches stigma and encourages harassment, they say.

Following is a snapshot of the legal situation in Africa:

  • Angola: Last month scrapped a notorious "vices against nature" provision in its penal code, and made the refusal to employ or provide services to someone on the grounds of their sexual orientation liable to a jail term of up to two years.
  • Botswana: On March 15, the High Court will hear a case brought by campaign group Lesbians, Gays and Bisexuals of Botswana challenging the constitutionality of a law punishing same-sex conduct.
  • Chad: Approved a law in May 2017 to punish "same-sex sexual relations" with between three months' and two years' jail and a fine ranging from 50.000 to 500.000 FCFA ($85 to $850).
  • Gabon: The first gay traditional wedding was conducted in 2013 but the couple was immediately arrested following an outcry. The pair was released and the marriage overturned on technical grounds.
  • Lesotho: In 2012, approved a penal code which scrapped a common-law regime under which sodomy had been criminalised. Initiated a process in 2016 to decriminalise same-sex marriage, although the law is making little headway in parliament.
  • Malawi: Debating the legal status of homosexuality. In 2012, the government ordered a moratorium on arrests and prosecutions of consensual homosexual adults. In 2016, the High Court suspended the moratorium pending a judicial review by the Constitutional Court.
  • Mozambique: In 2015, swept away Portuguese colonial laws dating back to 1886 that punished anyone "who habitually engages in vices against nature." No known prosecutions under those laws occurred after Mozambique gained independence in 1975.
  • Mali: No anti-homosexuality law, but conservative Islamic groups last December successfully campaigned against a Dutch-funded schoolbook on sexual education, maintaining it promoted homosexuality.
  • Nigeria: Law introduced in 2014 provides for up to 14 years' jail for same-sex cohabitation and any "public show of same-sex amorous relationship". In the north, sharia makes homosexuality punishable by death in theory.
  • South Africa: In 2006, South Africa became the sole African nation to allow gay marriage. The country has become a haven for African homosexuals who flee persecution at home or travel to the country to get married before returning home.
  • Tanzania: A conviction for having "carnal knowledge of any person against the order of nature" can lead to 30 years' jail or more. Political rhetoric against homosexuality has increased since President John Magufuli was elected in 2015.

    Foreign gay rights activists have been expelled and last October, the governor of Dar es Salaam, the country's economic capital, threatened to arrest homosexuals.

  • Uganda: Defying Western criticism, President Yoweri Museveni in February 2014 signed an Anti-Homosexual Bill that hiked the penalty for same-sex relations from seven years to life, and extended punishments to people found guilty of "promoting" homosexuality. However, it was annulled by the courts six months later, in what activists hailed as a victory.
  • Zambia: Homosexuality is widely reviled and same-sex relationships can draw sentences of between a year and 14 years' jail. Earlier this month, TV regulators ordered a new locally-produced reality show, "Lusaka Hustle," to be taken off the air on the grounds that it promoted a gay lifestyle.

    Gays and Africa: Quotes

    Here is a selection of quotes illustrating the situation of gay, lesbian, bisexual, and transgender people in sub-Saharan Africa:

  • "Worse than pigs and dogs." - Former Zimbabwean president Robert Mugabe (2010).
  • "You cannot call an abnormality an alternative orientation. It could be that the Western societies, on account of random breeding, have generated many abnormal people."- Ugandan President Yoweri Museveni (2014).
  • "As a nation and government we will not accept foreign misdemeanour because we have never known same marriages of a man to man or woman to woman and the Bible does not allow. We will not sit back and watch man marrying man, or woman and woman. We will arrest them and deal with them accordingly." - Zambian President Edgar Lungu, speaking in 2013 when he was home affairs minister
  • "We have no legal protection. My parents don't talk to me. In my neighbourhood and in the classroom, if people speak to me, it's with complete disdain and mockery," - Mandele Branco, a 27-year-old student in Guinea-Bissau (2018).
  • "If you're gay and rich you can get away with it. But if you're gay and poor, you'll end up rotting in jail for the rest of your life." - David, a Nigerian gay man (2018).
  • "Our men got wind of the wedding and stormed the venue where they arrested 11 young women, including the bride and the groom ... We can't allow such despicable acts to find roots in our society." - Abba Sufi, director-general of the Islamic law-enforcement agency in northern Nigeria, the Hisbah, referring to a raid on a lesbian wedding (2018).
  • "Give me their names ... My ad hoc team will begin to get their hands on them next Monday." - Paul Makonda, governor of Tanzania's economic capital Dar es Salam, at the launch of an anti-gay crackdown in which urged reporters to identify homosexuals (2018).
  • "There is this love-hate relationship from the Muslim community. Sometimes they feel that I should be thrown from the highest mountain, and sometimes they appreciate that there is one imam who is willing to work with people who they are unwilling to work with." - Muhsin Hendricks, imam at the People's Mosque in Cape Town. Hendricks is openly gay and his teaching promotes homosexual rights (2016).
  • "I would refuse to go to a homophobic heaven. No, I would say sorry, I mean I would much rather go to the other place." - South African anti-apartheid activist and Nobel laureate Archbishop Desmond Tutu (2013). His daughter Mpho Tutu-van Furth was made to renounce her duties as an Anglican priest when she married a woman in 2016.

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