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LGBT rights: Kenya court outlaws anal exams

March 22, 2018

Rights groups have hailed the ruling as a "tremendous step" for gay rights in the conservative country. Kenya has been listed by LGBTQ rights groups as a country that sponsors homophobia through its laws and policies.

Kenyan supporters of the LGBT community stage a protest
Supporters of the Kenyan LGBT community staged protests demanding more rights in Kenya and other parts of East AfricaImage: picture-alliance/dpa/D. Kurokawa

Kenya's Court of Appeals on Thursday ruled that the use of forced anal exams used to determine whether homosexual men engaged in sex is illegal.

A day after the court ruled in favor of the lesbian and gay community, community members held an indoor meeting in Mombasa, to celebrate their victory and look at the way forward.

Speaking out

Esther Adhiambo was one of the participants. She is an officer at Initiative for Equality and Non-Discrimination. Adhiambo said the meeting was set to understand what it meant exactly to win such a case.

"We are human rights defenders, we understand. So how do we then trickle this down to the gays and transgender on the ground? So that was basically a collective of organizations that advance human rights for lesbians, gays and bisexuals in Mombasa," said Adhiambo.

She added that the court ruling had motivated gay people to speak openly about the pain of such medical tests which have for a long time been conducted on suspected gay and transgender people. "Most people were not coming out, but after the case went to court there were people who actually said that this was done to me. It is something that has been going on silently."

The National Gay and Lesbian Human Rights Commission (NGLHRC) took the case to court after two men were arrested in 2015 on suspicion of having sex.

Read more:   Anti-gay sentiment on the rise in Africa

According to the men, authorities forced them to undergo anal examinations by hospital staff and security personnel. They also said authorities forced them to submit to HIV tests.

'Tremendous step'

The NGLHRC argued the tests violated the men's constitutional rights. A Kenyan court in 2016 ruled that such tests were constitutional and, as such, within the scope of use for authorities. Thursday's ruling overturned that decision.

"The ruling is a tremendous step not only in upholding the dignity of homosexuals who'd been subjected to the indignities of anal examinations but also to the rule of law in Kenya," said Eric Gitari, who heads the NGLHRC.

Members of the public listen as a Kenyan court hears arguments in a case challenging parts of the penal code
The court overturned a lower court's ruling that anal exams were legalImage: picture alliance/AP/B. Curtis

Some Kenyans from of the gay and lesbian community in Mombasa celebrated the win, saying that it meant a lot to them.

Kennedy Mwendwa was one of them. He said that they were not subjected to any form of violence. "Because of the community I come from, it’s important for people to know that you are not part and parcel of violence this means that they’re not going to be violated." Mwendwa said.

Esther Nelima, a program officer at Coast Sex Workers Alliance, said the decision will allow many gay people to visit health facilities because they will no longer be stigmatized by having to undergo anal examinations.

"We are human beings irrespective of what we do, irrespective of where we come from. We are entitled to those rights and we expect other people also to treat us the same the way we would also treat them," Nelima said.

State-sponsored homophobia

In Kenya, same-sex sexual activity is outlawed and punishable by 14 years in jail. Before Thursday's ruling, Kenya was one of eight countries that allowed forced anal exams.

The others are Cameroon, Egypt, Lebanon, Tunisia, Turkmenistan, Uganda and Zambia, according to Human Rights Watch.

Read more: Tanzania: Clampdown on gays creates climate of hate

"The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit," said NGLHRC.

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) has listed Kenya on its list of countries that sponsor homophobia through its national laws and policy. The NGLHRC has also challenged Kenya's laws targeting homosexuality.

Diana Wanyoni contributed to this report.

ls/sms (AP, Reuters)