National Gay and Lesbian Human Rights Commission

Fighting to decriminalise homosexuality in Kenya

Freedom for Equality

Homosexuality is illegal in 33 of Africa's 56 states. In Mauritania and parts of Nigeria, it’s a crime punishable by death and in states including Gambia, Sierra Leone and Tanzania it could mean up to life imprisonment. For the most part, the criminalisation of homosexuality in Africa is a direct result of colonialism, with much of the anti-homosexual legislation introduced by European states and remaining unchanged. In recent decades, often due to religious influence, some states have created new laws against homosexuality, even declaring it “un-African”. Kenya’s colonial-era law criminalises same-sex sexual acts, which are punishable by 14 years in prison and many members of Kenya’s LGBT community face harassment, threats and sometimes violence.

Founded by six young legal advocates, The National Gay and Lesbian Human Rights Commission (NGLHRC) mission is to promote and protect the equality and inclusion of LGBTIQ individuals and communities in Kenya, and advance their meaningful participation in society. They began their work by conducting a nine-month study to understand the needs and priorities of the LGBTIQ community in Kenya. They found that current punitive criminal laws against expressions of same sex intimacy were a major barrier to equality. In effect, these laws convey to Kenyan society that LGBTIQ persons "are criminals," and should be treated as such. This has allowed for on-going and unfettered discrimination of the community.

NGLHRC works to achieve policy and legal reforms towards equality and full inclusion of sexual and gender minorities through strategic litigation, legal aid clinics and community outreaches, research and documentation and urgent action missions. They also work to build the LGBTIQ movement in Kenya through civic and paralegal trainings, aimed empowering the LGBTIQ persons. Further, the commission holds sensitization training, on the challenges faced by LGBTIQ persons in accessing justce and other services. The trainings targets, among others police officers, Magistrates, prosecutors and health practitioners.

On 22 March 2018, they achieved a ground breaking victory, winning a landmark case to end the forced anal examinations on men suspected of same-sex relations in Kenya. NGLHRC filed a constitutional challenge after police arrested two men in Kwale County in February 2015 on charges of homosexuality, and subjected them to forced anal exams, HIV tests, and Hepatitis B tests at Mombasa’s Madaraka Hospital. NGLHRC contended that forced anal testing is cruel, inhuman, and degrading treatment that can amount to torture. The Independent Forensic Experts Group has found that the exams, which are based on long-outdated 19th century medical theories, are both medically worthless and a severe violation of medical ethics.

“With this ruling, the judges are saying that we all deserve to be treated with dignity and afforded our basic rights, as enshrined in the Kenyan Constitution,” said Njeri Gateru, head of Legal Affairs at NGLHRC. The victory also provided hope for similarly favourable rulings in their upcoming court cases. In 2016, NGLHRC, along with the Gay and Lesbian Coalition of Kenya (GALCK) and the Nyanza Rift Valley & Western Kenya Network (NYARWEK), filed a constitutional challenge to sections 162(a) and (c) and 165 of Kenya’s penal code, which criminalise consensual same-sex relations. The groups contend that these colonial era laws prohibiting violate the rights of LGBT Kenyans and others to privacy, equality and non-discrimination. A ruling is expected in the coming months.

NGLHRC are making incredible progress to repeal the laws that criminalise LGBTIQ people in Kenya. By working to change the law, they are promoting equality and inclusion for all of Kenya’s LGBTIQ community.

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