‘There is no law in Kenya against being gay,’Sifuna lectures MP Farah Maalim

While appearing in a panel discussion on Citizen TV, MP Maalim faulted the Kenyan courts for breaching the provisions in law to the extent of allowing persons identifying as gay the right to associate.

"For the courts to do things that are happening in this country is the height of ignorance of the philosophy of how law operates in a democracy," said Maalim.

"We are in a very bad situation to the extent where at one point a judge said that gay people have a right to associate. In our own penal code gay is a crime, a criminal offence. It's tantamount to say that murderers have the right to associate."

He was referring to a ruling made on February 24, 2023, by the High Court that the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community have the right to association after a decade-long court battle.

When Sifuna took the mic, he disputed Maalim's statement while arguing that there is no provision in the Kenyan law barring persons in the LGBTQ community from associating.

Sifuna instead indicated that what has instead been barred in the Penal Code (Section 162) is engaging in unnatural offences which includes having carnal knowledge of any person against the order of nature.

Anyone found guilty of the offence is liable to imprisonment for fourteen years.

"There is no law in Kenya against being gay. That law does not exist you have just created it here the penal code puts a penalty on having sexual conduct that is against the order of nature including between a man and woman," he said.

"There is a law in this country called statutory rape, you people where you (Maalim) come from call it early marriage of children." 

During the February ruling, three Supreme Court judges; Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Njoki Ndung’u, ruled in the majority side of the issue.

"It would be unconstitutional to limit the right to associate through denial of registration of an association purely based on the sexual orientation of the applicants," they stated in their ruling.

Justice Mohamed Ibrahim and William Ouko dissented, saying that homosexuals shouldn’t be allowed to form recognised associations in Kenya as it was against the country's laws.

Part of their ruling read: “To reserve or register the names proposed by the 1st respondent would have the effect of giving recognition to groups whose declared objects and purposes are contrary to law.”

The push to have the rights of the community registered started in 2013 when the National Gay and Lesbians Human Rights Commission sought to have the Non-Governmental Organisation Coordination Board reserve a name from a list for the advancement of their rights.

Senator Edwin Sifuna: There is no law in Kenya against being gay. The penal code puts a penalty on having sexual conduct that is against the order of nature, including between a man and a woman. In this country statutory rape is labeled as early marriage #DayBreak @TrevorOmbija pic.twitter.com/fEUjR70Pyn— Citizen TV Kenya (@citizentvkenya) February 1, 2024