Gay rights activists move to Court of Appeal to challenge ruling

Gay rights activists move to Court of Appeal to challenge ruling

The National Gay and Lesbian Human Rights Commission (NGLHRC) has now filed an appeal at the Appellate Court after their bid to decriminalise homosexuality was quashed at the High Court.

“In the last few months following the ruling, NGLHRC has been engaged in consultations with petitioners, interested parties, legal teams, CSO allies and other stakeholders to strategize around the next phase of litigation,” said the gay rights activists in a statement to newsrooms on Tuesday.

“In our arguments at the High Court, we decried the fact that sections 162, a,c, 163 and 165 of the penal code that criminalize carnal knowledge against the order of nature –  were used to justify violations and discriminate against sexual and gender minorities in Kenya.”

NGLHRC had previously moved to court arguing that under Kenya’s 2010 Constitution, every person is said to be equal before the law.

High Court Presiding judges Roselyne Aburili, Chacha Mwita and John Mativo – in the May 24, 2019 ruling – said Section 162 (a) and (c) of Kenya’s Penal Code says clearly that homosexuality is illegal in Kenya.

The law, under  that section, states: “Any person who — (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.”

“We, [therefore], decline to issue the orders as sought by the petitioners. The phrase [in Section 162 (a) and (c) of Kenya’s Penal Code] is clear,” said the judges.

The court also rebuffed the petitioners’ argument that if homosexuality wouldn’t be decriminalised, then the LGBTQ community would continue being stigmatised.

“There is no basis upon which the court can say they [LGBTQ community] will be discriminated. We, [therefore], dismiss the case that they will be discriminated,” said the court, adding: “Stigma is not exclusive to the LGBTQ community. Everyone has the right to access health.”