EG v Attorney General: A Critique of the Kenyan High Court’s Homosexuality Judgment

By Raj Krishna

INTRODUCTION

On 24^th May, Kenya’s High Court in the case of EG v. Attorney General upheld the colonial law which criminalized homosexual acts between two consenting adults. The three judge bench of the Kenyan High Court unanimously held that there was no substantial proof of evidence which proved that the members of the LGBTQ community were being discriminated and their rights being violated. One of the judges in this case also observed that it is the duty of the Court to preserve the national values. It may thus be concluded that the reasoning of the Kenyan High Court in this case is quite similar to the reasoning extended in the infamous Indian case of Suresh Koushal v Naz Foundation wherein the Indian Apex Court upheld the law [Section 377, IPC, 1860] which criminalized homosexual acts between consenting adults.

BACKGROUND OF THE CASE

The petition in this case was filed in the year 2016 by an activist, Eric Gitari, and other organizations working for the rights of LGBTQ Kenyans. The petitioners in this case argued that Sections 162 [Unnatural Offences] and 165 [Indecent practices between males] of the Kenyan Penal Code violated Article 27 of the 2010 Kenyan Constitution which guarantees the right to equality, non-discrimination, human dignity, security, privacy, and health for all its citizens. Whereas the Government in this case has contended that it does not support any sort of discrimination against the LGBTIQ community. However they consider same sex relations as an offensive act because it is contrary to Kenyan culture and morals.

JUDGMENT OF THE KENYAN HIGH COURT

After going through the submissions of both the parties the Kenyan High Court dismissed the petition on the ground that there is no substantial evidence to prove that the members of the LGBTQ community have been discriminated against. The Court also held that decriminalization of same-sex relations would be contradictory to the constitutional values and customs of the Kenyan people.  It may be pertinent to mention that Article 45 Sub-article 2 of the Kenyan Constitution defines marriage as act between persons of the opposite sex and not the same sex. As a result the Kenyan High Court upheld Sections 162 and 165 of the Kenyan Penal Code.

CRITICAL ANALYSIS OF THE JUDGMENT

The judgment of the Kenyan High Court is constitutionally preposterous and morally egregious. It should be borne in mind that Article 27 of the Kenyan Constitution guarantees right to equality, non-discrimination, human dignity, security, privacy, and health for all its citizens. The Constitution uses the word “including” just after “ground”, showing that the definition is open-ended. This makes it one of the most progressive anti-discrimination provisions in any Constitution, anywhere in the world. However, the High Court through its judgment refused to confer such rights upon the members of the LGBTQ community who face regular discrimination at the hands of the majoritarian population. The Kenyan High Court also observed that there is no discrimination to the members of the LGBTQ Community.  However, as per the Government records, 534 people have been arrested in Kenya for indulging in same-sex relationships between 2013 and 2017. The National Gay and Lesbian Human Rights Commission has recorded that there have been more than 1,500 attacks against the LGBTQ Kenyans since 2014. There is ample proof which shows that due to a lack of legal protection, sexual minorities in Kenya are regularly abused, assaulted by mobs, raped by vigilantes or enslaved by criminals.

Secondly the Kenyan High Court has held that these provisions [Sections 162 and 165] of the Kenyan Penal Code do not violate the rights to privacy and dignity of the LGBTQ community. However, while deciding the same the Court has failed to take into account that every individual has autonomy to decide his or her partner without state coercion and societal pressure. However, Sections 162 and 165 of the Kenyan Penal Code criminalizes homosexual acts between two consenting adults. As a result, members of the LGBTQ community cannot live their lives and have sexual relations with the partners of their choosing. The provision 162 and 165 of the Kenyan Penal Code thereby violates LGBTQ member’s rights to privacy, dignity and autonomous freedom.

Thus, from above it can be said that the judgment of the High Court is legally wrong and is based upon a flawed reasoning.

WAY AHEAD

African nations such as Botswana, Mozambique, Angola and Seychelles have recently decriminalized homosexual activity between the consenting adults. In September 2018, the Indian Apex Court in the case of Navtej Singh Johar and Ors. v. Union of India decriminalized homosexual acts between two consenting adults. Taiwan became the first Asian country to legalize same-sex marriage. Recently the lower house of the Bhutan parliament decriminalized homosexuality. Thus, it can be said that the judgment of Kenyan High Court at this point of time is an aberration.

In the past, the world has witnessed judgments such as Dred Scott v Sanford [In this case the American Supreme Court held that Blacks could never be considered as citizens of the United States], Plessey v Ferguson [In this case the American Apex Court had held that segregated schools were constitutional], Suresh Koushal v Naz Foundation [In this case the Indian Apex Court refused to decriminalize homosexuality] and many more which have stood out as moments of deep national shame, blots on a judicial record and examples par excellence of judges at their very worst. However, at the end of the day they all have been overruled.

The petitioners in this case have filed an appeal against this erroneous High Court ruling. It is therefore hoped that the Court of Appeal will rectify the High Court decision and the present High Court ruling will get overruled.

[The author is a fifth year B.A. L.L.B. (Hons.) student at Chanakya National Law University, Patna.]