IBAHRI states Kenya High Court’s LGBTIQ+ rights ruling very ‘disappointing’ and supports appeal

Tuesday 4 June 2019

The International Bar Association’s Human Rights Institute (IBAHRI) is profoundly dismayed by the declination of Kenya’s High Court on 24 May 2019 to declare colonial era provisions criminalising homosexual conduct, which is punishable by 14 years in prison, as unconstitutional. News of the judgment being appealed is supported by the IBAHRI.

IBAHRI Co-Chair, the Hon Michael Kirby AC CMG, stated: ‘With respect, it appears erroneous to refuse a holding of unconstitutionality concerning the surviving colonial criminal laws against LGBTIQ+ [lesbian, gay, bisexual, transgender, intersex and queer/questioning+] persons on the basis of the different and separate question of the availability of same-sex marriage in Kenya. The challenge to the criminal laws should have been decided on its own merit as has happened elsewhere. It is also wrong in principle to reject the application of Kenya’s constitutional human rights protections on the basis that they may be unpopular with some people (even a majority) or contrary to some cultural traditions. It is often the case that universal human rights, contained in national constitutions, have to be upheld against local or traditional resistance. Moreover, it appears erroneous for the Kenyan court to decline relief on the basis that the impugned laws affect a “community” or “group’’ whereas the constitutional human rights protections are provided to “individuals”.’

Justice Kirby continued: ‘Groups are made up of individuals and there was ample evidence before the Kenya High Court that many “individuals” in Kenya have suffered discrimination, disadvantage and violence on the basis of their sexuality, abetted by the criminal laws. Most disappointing of all was the reliance placed by the Kenyan judges on the outdated and discredited decision of the Zimbabwe Supreme Court in Banana v State nearly 20 years ago. That decision is an embarrassment, has never been relied on elsewhere and was reached by two judges contrary to the powerful dissenting opinion of Chief Justice Gubbay, a greatly respected Commonwealth judge. It is hoped that these and other errors will be corrected in the appeal being brought against this disappointing and unpersuasive judgment. It is also hoped that Kenya’s jurisprudence will be brought into line with the overwhelming trend of judicial decisions in other common law jurisdictions, notably the powerful and unanimous opinion of the Supreme Court of India in 2018 that struck down the equivalent law in that nation.’

In 2016, two petitions were filed by members of local Kenyan LGBTIQ+ advocacy groups and individuals, arguing that Articles 162 and 165 of the penal code – which declare it an unnatural offence for any person to ‘have carnal knowledge against the order of nature’ and criminalises ‘gross indecency’ between male adults, respectively – were contrary to Articles 27, 28, 29, 31 and 43(1)(a) of the Kenyan Constitution. Correspondingly, the Articles of the Constitution protect the rights to equality and freedom from discrimination, human dignity, freedom and security of the person, privacy and the highest attainable standard of health.

However, a three-judge bench of Justices, Roselyn Aburili, John Mativo and Chacha Mwita, unanimously rejected the arguments, refusing to find any discriminatory effect of the provisions on LGBTIQ+ persons nor a violation of their rights to dignity and privacy. The Justices explained that these rights were not absolute but had to be weighed against Article 45(2) of the Constitution, stipulating the right of every adult ‘to marry a person of the opposite sex’. Thus, as same-sex marriage would be against the values of the Constitution, so too would be the decriminalisation of same-sex relationships because it would ‘open the door for same sex unions’.

Anne Ramberg Dr jur hc, IBAHRI Co-Chair, commented: ‘The guarantees of international human rights law, including the rights to privacy and equal treatment, are applicable to everyone and must be upheld at all times. The high levels of discrimination and persecution experienced by LGBTIQ+ persons within Kenya, and across Africa generally, are a matter of deep concern to the IBAHRI. The recent ruling is a missed opportunity to uphold the basic rights of LGBTIQ+ people. Everyone, regardless of their sexual orientation or gender identity, must be able to live a fulfilling life with their loved ones without fearing incursion into their most private lives, hostility or violence. The IBAHRI commends Kenya’s LGBTIQ+ community, and their legal and civil society friends and supporters, for fighting with such resilience and persistence for their right to be treated equally and with human dignity.’

According to rights groups, 534 people were arrested for homosexual relationships between 2013 and 2017 in Kenya, and in the past five years an alleged 1,500 people have suffered attacks.

More than 60 per cent of African nations continue to criminalise same-sex activities. These laws contravene the mandates of international human rights law, with the right to equality and non-discrimination being core principles of the Charter of the United Nations, the UN Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights (African Charter). The UN Human Rights Committee held in 1994, in Toonen v Australia, that laws criminalising homosexual conduct are in contravention of Article 17 and 26 of the International Covenant on Civil and Political Rights (ICCPR). In addition, in 2006, in the case of Zimbabwe Human Rights NGO Forum v. Zimbabwe, the African Commission on Human and Peoples’ Rights stated that the non-discrimination clause extends to sexual orientation. Kenya is a state party to both the ICCPR and the African Charter.

The IBAHRI is concerned that the 24 May 2019 judgment privileges outdated colonial values over human rights and supports an appeal of the judgment.


Notes to the Editor

  1. Related material:
    - IBAHRI Council Resolution on sexual orientation and human rights
    - IBA opens dialogue with the Vatican on decriminalising homosexuality
    - IBAHRI calls on Bermuda, the UK and Commonwealth countries to protect LGBTIQ rights
  2. The International Bar Association (IBA) – the global voice of the legal profession – is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.

    In the ensuing 70 years since its creation, the organisation has evolved from an association comprised exclusively of bar associations and law societies to one that incorporates individual international lawyers and entire law firms. The present membership is comprised of more than 80,000 individual international lawyers from most of the world’s leading law firms and some 190 bar associations and law societies spanning more than 170 countries.

    The IBA has considerable expertise in providing assistance to the global legal community, and through its global membership, it influences the development of international law reform and helps to shape the future of the legal profession throughout the world.

    The IBA’s administrative office is in London, United Kingdom. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, United States, while the International Bar Association’s International Criminal Court and International Criminal Law Programme (ICC & ICL) is managed from an office in The Hague, the Netherlands.

    The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

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