Gay rights ruling in Kenya could reverberate through Africa

Gay rights activists are celebrating after a Kenyan court ruled that subjecting suspected gay men to forced anal testing was illegal. The landmark case marked a significant shift in sexual minority rights in the country, which activists hope will eventually lead to decriminalizing homosexuality in Kenya and other countries in the region.

This case surrounds the 2015 arrests of two suspected gay men in Kenya’s coastal town of Ukunda. The men claim they were subjected to forced anal exams, which officials said were used to determine if the men were engaging in homosexual activity. Their legal team argued the procedure was akin to torture. The court agreed, turning over a previous ruling and deciding such state-led examinations were unconstitutional and violated human rights.

The win is part of an ongoing fight to protect the rights of sexual minorities in Kenya, which activists hope will lead to repealing the colonial-era law that criminalizes homosexuality in the East African country.

Kenya is one of at least 34 African countries where same-sex sexual acts are illegal and punishable by 14 years in prison according to its Penal Code. There were nearly 600 cases of “unnatural offenses” logged by police between 2010 and 2014 according to the United States Human Rights Country Report. Eight men were prosecuted on indecency charges in that time.

But Kenya is not alone in subjecting suspected gay men to forced anal exams. Cameroon, Egypt, Uganda and Zambia also claim the procedure is a valid method for determining if a man has participated in anal sex.

'No medical basis'

The medical community has long condemned the outdated procedure, which usually involves a medical professional inserting their fingers, an instrument or tubes into the man’s rectum to visually examine the area for signs he has engaged in anal sex. They are oftentimes forced to bend over or lift their legs into a birthing position before the examination. Those inspected are almost exclusively male.

“This is a very invasive procedure that has no medical basis whatsoever,” said Kari Mugo, operations manager at The National Gay and Lesbian Human Rights Commission (NGLHRC), which represented the two men in this month’s court case. “I think it sends a strong message and has the potential to influence other countries as well.”

Medical groups like The Kenya Medical Association and The Independent Forensic Expert Group (IFEG) have also condemned the practice, calling the forced examinations invalid and based on “incorrect assumptions.”

“Forcibly conducting anal examinations on individuals is humiliating, demeaning, and, not surprisingly, almost invariably causes significant psychological suffering,” the IFEG said in a statement.

While the case represents a big win for Kenya’s lesbian, gay, bisexual and transgender community (LGBT), Mugo said forced anal examinations are only one part of a wider pattern of discrimination supported by the Penal Code of Kenya.

While the Penal Code outlaws “carnal knowledge against the order of nature” for all Kenyans, the second section specifically targets men who have anal sex with other men.

Those who are detained under that section are most often men who present more feminine qualities, said Gigi Louisa, assistant programs officer and security coordinator at the Gay and Lesbian Coalition of Kenya.

“This is occurring in an African context that is heavily patriarchal. The laws that we have as a society heavily rely on the dominance of men and the submission of women,” Louisa said. “The violence is not toward men because they’re gay, but men who present a certain way and have anal sex with other men.”

But while many members of Kenya’s LGBT community face harassment, threats and sometimes violence — the Penal Code itself “allows an entire class of Kenyan citizens to be treated like criminals,” Mugo said.

Mugo said her team at NGLHRC received between 1,500 and 3,000 reports of discrimination based on perceived sexual orientation or gender expression since 2012. But because the court system requires that legal documents be publicly available, potentially exposing the plaintiff’s sexual orientation or gender expression, “most of them don’t go to trial,” she said.

Pursuing legal action can also lead to additional discrimination, harassment or violence by the police, Mugo added.

“We’ve had distrust in the system, and not really trusting that your case will be seen through in a fair way,” she said. “We’re still just fighting for the right to live our lives and not be murdered, evicted or unfairly dismissed.”

Still, activists are determined to tackle Kenya’s discriminatory laws, introducing a petition that challenges Kenya’s Penal Code and encourages a constitution that is inclusive of all citizens. It is scheduled to go to court on April 26, 2018.

That petition, along with the outlawing of forced anal testing, is part of a multi-step litigation strategy that could have reverberations throughout East Africa.

“Our leaders are from Africa and they have a nature of adapting to what happens in other countries,” Louisa said. “We are hoping that the same trend is going to happen across the region.”

Until then, Kenya’s LGBT activists are celebrating this incremental victory for their community.

“It seems like it’s such a big win,” said Mugo. “To see our courts continually push for our rights to be enshrined is really heartwarming to us.”