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Kenya: LGBTQ ruling angers political leaders as gays & lesbians live in fear

The backlash arising from a Supreme Court ruling granting gays and lesbians the right to associate has raised fears of increased homophobia in Kenya.

An LGBT activist walks past anti-gay rights protesters holding placards outside the Milimani high Court in Nairobi, Kenya in 2019. [REUTERS/Baz Ratner]

The backlash arising from a Supreme Court ruling granting gays and lesbians the right to associate has raised fears of increased homophobia in Kenya.

When the Supreme Court ruled on 24 February that gays and lesbians have a right to register an LGBTQ rights organisation, after a drawn-out court battle that lasted for a decade, many of them could not hold back their joy.

“This is a major victory not only for the LGBTQ community in Kenya, but also for the protection of human rights in the country,” said one of the members on condition of anonymity. It all started in 2013 when members of the gay and lesbian community wrote to the NGO Coordination Board – the state corporation charged with regulating the non-profit sector – to reserve a name for their group as a first step to registration. Three possible names were forwarded.

The NGO Board declined the request because all three names proposed had the words ‘gays and lesbians’.

The LGBTQ team then moved to the High Court to challenge the decision and won the case in 2015. The NGO Coordination Board appealed, but lost after the Court of Appeal upheld the High Court ruling in 2019, in a three-to-two judgement. Dissatisfied with the ruling, the NGO Board moved to the Supreme Court for a final determination. The case, again, resulted in divided opinion among the judges with three ruling in favour of the LGBTQ team and two dissenting.

In their ruling, the majority said: “It would be unconstitutional to limit the right to associate through the denial of registration of an association purely on the basis of the sexual orientation of the applicants.”

Anti-LGBTQ bill

However, the ruling drew major uproar mainly from politicians and religious leaders who demanded that the Supreme Court review the decision.

Homa Bay Town MP Peter Kaluma has even drafted an anti-LGBTQ bill, which is currently before parliament for debate.

“It makes me question whether we have a court for Kenyans or a court for some perverts from outer space,” Kaluma tells The Africa Report. The Homa Bay Town MP says homosexuality should be a criminal offence punishable by life sentence. “The proposed law is intended to protect the family in relation to unnatural sexual acts by increasing the penalty regime to deter homosexuality. This is because our current laws do not offer necessary deterrence,” says Kaluma.

The bill also proposes to introduce mandatory rehabilitation arguing that many young people get involved in homosexuality not because of their own volition but due to external factors such as poverty and peer pressure.

“I believe such individuals can be reformed and integrated back into society,” he says.

If passed, the law will also target those who aid and abet homosexuality, including law enforcement officers who fail to act when prompted.

Religious factor

Kaluma and other MPs base their argument on Article 45 of the Constitution, which says every person has a right to marry a person of the opposite sex based on the free consent of the parties.

“We are going back to the Supreme Court to seek a review of the decision by a full bench of seven judges, and if they don’t, we will remind them where they derive their power from,” the legislator says. Even though we respect the courts, our history and culture do not allow homosexuality. Kenya cannot allow homosexuality

Christian and Muslim clerics have also criticised the court’s decision, terming it a major threat to the country’s moral values.

The Kenya Conference of Catholic Bishops (KCCB) says the ruling should be reviewed. “The decision is an attack on humanity and the will of God. The aim is the promotion of homosexual actions and normalising homosexual and same-sex unions,” says Martin Kivuva, the KCCB chairman.

The clerics claim that if the LGBTQ organisation is registered “it will lead to the breakdown of the moral fabric of society, the institution of marriage and family and future generations”.

Ruto and Raila

President William Ruto and opposition leader Raila Odinga, who rarely agree on issues, have also joined the anti-LGBTQ bandwagon.

“I am a God-fearing man. Even though we respect the courts, our history and culture do not allow homosexuality. Kenya cannot allow homosexuality,” said President Ruto.

Raila, on his part, castigated the Supreme Court for what he termed as usurpation of lawmaking, which is a prerogative of parliament.

“The judges should have referred the matter to Parliament to come up with laws that cover the grey areas,” he said.

Due to the widespread public condemnation, some gays and lesbians are now living in fear, arguing that there is a concerted effort to paint them as criminals.

“Since the Supreme Court ruling, hate against homosexuals has increased, especially in the social media space. I no longer feel safe anymore. I do not want to be murdered like some of our colleagues,” says an activist who did not want to be named for fear of being targeted.

Gay and lesbian activists killed

Earlier this year, Edwin Chiloba, a gay activist and fashion designer, was murdered and his body stuffed inside a metal box.

The killing drew worldwide condemnation, even from the US government, which offered to assist Kenyan authorities in the investigation. Five people have so far been arrested and charged with the murder.

In 2022, Sheila Lumumba, a non-binary lesbian, was raped and murdered in Nyeri County by unknown individuals, sparking the trending hashtag #JusticeForSheila. It is alleged that the attack on Lumumba was homophobic.

A year before, trans-woman activist Erica Chandra and LGBTQ activist Joash Mosoti were also murdered under unclear circumstances, prompting the hashtags #JusticeForErica and #JusticeForJoash.

“The murders are not isolated incidents, but are part of a pattern of attack and violence against us. The level of homophobia in the country is now at its highest level following the Supreme Court ruling,” the gay activist says.

Advocate Dudley Ochiel, who was an amicus curiae (friend of the court) in the LGBTQ case at the Supreme Court, says the outrage is partly because “[…] the church flexing its muscle to show they are present. You can win in court but lose out in the public debate”.

‘A delicate issue’

The advocate acknowledges that the LGBTQ issue is delicate and that Kenyans need to tone down the rhetoric and discuss the matter soberly.

“It is a difficult issue. It is difficult for the courts, the church and everyone involved,” he says.

"The court case has brought out fears some of which cannot be backed up by any credible information within the Kenyan context"

Christine Nkonge, the executive director of Katiba Institute, a rights organisation that participated in the case as an amicus curiae, concurs that Kenyans need to have a deeper discussion about gay and lesbian rights. “The court case has brought out fears some of which cannot be backed up by any credible information within the Kenyan context,” Nkonge tells The Africa Report.

She says people fear the will lead to the breakdown of families, the demise of the human population and increase in crimes, such as pedophilia.

“Popular opinion or public opinion should not always carry the day, especially where you are dealing with minority rights,” says Nkonge.

Kaluma disagrees, saying the Kenyan leadership should instead take a hard line stance like Ugandan President Yoweri Museveni.

Like Kenya, Ugandan legislators have also presented a bill in Parliament that proposes tougher penalties on same-sex relations.

If passed, anyone who engages in same-sex activity or “holds out” as LGBTQ could face up to 10 years’ imprisonment.

Western influence

Both Kenyan and Ugandan legislators are accusing the Western world and some donor-funded NGOs of pushing for LGBT rights in the region.

In Kenya, MPs allege that the controversial ruling by the Supreme Court coincided with the visit of US First Lady Jill Biden and a donation of $126mn (KSh16.3bn) by USAID to fight the effects of drought that have left millions of Kenyans hungry.


(c) 2023, The Africa Report



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