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Kenyan court upholds bans on gay intimacy

An activist supporting the LGBT community, wearing a rainbow flag, walks past a gathering of Christians opposed to the decriminalization of homosexuality, after a ruling by the High Court in Nairobi, Kenya, Friday, May 24, 2019. Kenya's High Court on Friday upheld sections of the penal code that criminalize same-sex relations, a disappointment for gay rights activists across Africa where dozens of countries have similar laws. (AP Photo/Ben Curtis)

NAIROBI, Kenya (RNS) — In a case that pitted influential faith leaders against gay rights groups, Kenya’s High Court declined on Friday (May 24) to force the repeal of sections of the penal code widely seen to discriminate against homosexuals.

A ruling in favor of repeal would have been a trailblazing step for an Africa court, but the three-judge bench said there was not sufficient evidence of discrimination or denial of basic rights.

“We are not persuaded by the petitioner that the offense against them (gays and Lesbians) are overboard,” said Justice Chacha Mwita, one of the judges.

But pro-gay church leaders and activists reacted sharply to the ruling, vowing that the struggle for equality will continue.

Members of the Kenyan LGBTI community leave Kenya High Court in Nairobi after hearing the ruling on an LGBTI petition seeking decriminalization of gay sex on May 24, 2019. RNS photo by Fredrick Nzwili.

“I am very disappointed,” Rev. John Makokha, a pastor who heads Riruta Hope Community Church in Nairobi, which welcomes LGBT people, told Religion News Service. “Gay people need the freedom to express themselves without fear or victimization. They need to be let free to live their lives fully.” He urged the churches to open their doors to LGBT people, saying they, too, are children of God.

But the vast majority of Christian and Muslim leaders approved of the court’s decision. Most oppose homosexuality as contrary to the teaching of the Bible and the Quran, and many pastors don’t accept gays and lesbians in their churches.

Homosexuality “is against everything — our culture, the bible, nature, our faith,” said Anglican Archbishop Jackson Ole Sapit of Kenya. “We are alarmed by same sex marriages. Marriages is an institution of procreation. There is no procreation in gay marriages.”

According to the archbishop, defeating these trends, which he said are imports from the West, requires vigilance. “If we keep quiet, they advance an inch. We must sustain the noise against the trends,” said Ole Sapit.

Sheikh Hassan ole Naado, deputy secretary general of the Supreme Council of Kenya Muslims, said he never doubted how the court would rule. “The society does not condone extreme liberal ideas such as this one. We are for procreation and we do not support homosexuality,” said Ole Naado.

Members of Kenyan LGBTI community await a ruling in Kenya High Court in Nairobi on an LGBTI petition seeking decriminalization of gay sex on May 24, 2019. RNS photo by Fredrick Nzwili.

In 2016, the National Gay & Lesbian Human Rights Commission went to court seeking a repeal of sections 162 and 165 of the Penal Code of Kenya. Though convictions have been rare, the two sections outlaw “carnal knowledge against the order of nature and indecent acts” between males, whether in public or private, and punish gay sex with up to 14 years in prison.

Gay rights activists had argued that the laws contradicted sections of the 2010 constitution, which guaranteed equality, dignity and privacy for all citizens.

Opponents say the laws have been used to persecute the LGBT community. Some members of the gay community have been attacked, evicted from their houses or fired from work because of their sexual orientation.

“LGBT rights mean more than just gay rights. The fight to #Repeal162 is a fight for civil liberties. This fight should matter to everyone no matter who we are,” said Michael Okun Oliech, a Kenyan writer, blogger and human rights activist, in a tweet.

“This is a huge setback for human rights in Kenya,” said Téa Braun, the director of the Human Dignity Trust, who was in court to see the ruling handed down.

“The ruling sends a dangerous signal to the other 72 countries, 35 of them in the Commonwealth, where citizens are made ‘criminals’ simply because of their sexual orientation or gender identity.”

In sub-Saharan Africa, 28 out of 49 countries have laws penalizing same-sex relationships, according to Human Rights Watch. In Mauritania, Sudan and Northern Nigeria, Islamic law prescribes death for homosexuals, although no executions have been carried out recently. Angola, Mozambique and Seychelles recent scrapped their anti-gay laws.

About the author

Fredrick Nzwili

Fredrick Nzwili is a journalist based in Nairobi, Kenya. For more than 15 years, he has written about religion, politics, peace and conflict, development, security, environment and wildlife. His articles have appeared in international media organizations among others; The Tablet, The Christian Science Monitor, The National Geographic and Kenyan local newspapers; The Standard and the People Daily.

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