1. Skip to content
  2. Skip to main menu
  3. Skip to more DW sites

Kenyan court delays decision on homosexuality

Martina Schwikowski
February 22, 2019

Kenya has postponed a much anticipated ruling on homosexuality, to the great disappointment of human rights groups. They continue to hope for a verdict that decriminalizes same-sex relationships.

Three people wearing rainbow-colored masks
Image: picture-alliance/dpa

Kenya's High Court on Friday postponed a ruling on whether to scrap colonial-era laws which criminalize homosexuality. The reason given for the delay was a heavy case load. The new date for the decision is set for May 24. The delay was met with dismay by Kenya's LGBT (lesbian, gay, bisexual, transgender) communities and supporters, who have been anxiously awaiting a ruling on the petition, which was filed three years ago. "To say we are disappointed would be an understatement," the National Gay and Lesbian Human Rights Council (NGLHRC), one of the petitioners, wrote on Twitter.

Not all Kenyans agree. "God created Adam and Eve, not Adam and Steve — we shouldn't even be having this topic," John Mutaye, a student, told DW in Nairobi. His is not a lone voice: Many people in the East African country regard homosexuality as immoral. In the recent past, men caught having sexual relations with other men were arrested and sentenced in court to up to 14 years of imprisonment.

Outdated colonial laws

John Mathenge is the director of the organization Hoymas, which was set up in 2009 by male sex workers and people living with HIV and AIDS. "I am an openly gay man, and I don't have any problem with my sexuality. The people who have a problem with it, they are the ones who are sick," Mathenge said. "I went through all those kinds of evictions; my life is being threatened by the community, also by the police. There is a lot of stigma, and discrimination and violence is caused all over the village. We still use the British colonial laws," he added angrily. "But when you go to London, gay men are free to talk, lesbians are free to do whatever they want to do, but we are still governed by the British colonial rules."

Two black men kissing
Homosexuality remains a crime in Kenya, at least until May.Image: TONY KARUMBA/AFP/Getty Images

Irungu Houghton, executive director of Amnesty International (AI) Kenya, would like to see an end to the violations of the right to equality and  privacy that are enshrined in the constitution.  "The outdated colonial laws allow that LGBT [people] can be intimidated, forced to leave their homes, and denied health and medical access," he told DW. Sodomy is a felony under Section 162 of the Kenyan Penal Code, and Section 165 also targets male-to-male intimacy. Houghton sees strong social media opposition to the annulling of these two sections. "Most Kenyans are bothered with this (homosexuality) and see it as a threat to national culture," he said

Homophobia in Africa

Homophobic views appear to be deeply rooted in many African countries. More than half of the countries in sub-Saharan Africa have anti-homosexuality laws, although others have moved towards legal tolerance, watchdogs say. Out of 49 countries, 28 have laws penalizing same-sex relationships, according to Neela Ghoshal, a Human Rights Watch (HRW) specialist in lesbian, gay, bisexual, and transgender rights. The death penalty is still on the books, under Islamic sharia law, in Mauritania, Sudan and northern Nigeria, although there have been no known executions in recent times. In southern Somalia, gay men are believed to have been put to death in territory ruled by the al-Shabab jihadist group.

 Mozambique, Seychelles and Lesotho have scrapped anti-gay laws in recent years. A few weeks ago, Angola took steps to abolish a notorious "vices against nature" provision in its penal code, and made the refusal to employ or provide services to someone on the grounds of their sexual orientation liable to a jail term of up to two years. Chad and Uganda, meanwhile, have introduced or toughened legislation.

In Uganda the law punishes same sex couples with heavy prison sentences. The country's LGBT community complains of harassment by the government and the Ugandan police. President Yoweri Museveni has condemned homosexual activities as morally contemptible: "You cannot call an abnormality an alternative orientation. It could be that the Western societies, on account of random breeding, have generated many abnormal people," the president said in 2014. Defying Western criticism, he signed an anti-homosexual bill that hiked the penalty for same-sex relations from seven years to life, and extended punishments to people found guilty of "promoting" homosexuality. However, the bill was annulled by the courts six months later.

A Gay Pride procession in Johannesburg
South African Gay Pride: Gay and lesbian participants march through the streets of Johannesburg.Image: picture-alliance/dpa/K. Ludbrook

Waiting for a milestone ruling

The South African constitution stands in contrast to Ugandan law: In South Africa, everybody enjoys equal rights, gay marriages were allowed in 2005. But in reality, day-to-day-life tells a different story and many gays and lesbians feel  threatened and liable to attack. "There is this love-hate relationship with the Muslim community. Sometimes they feel that I should be thrown from the highest mountain, and sometimes they appreciate that there is one imam who is willing to work with people whom they are unwilling to work with", said Muhsin Hendricks in media reports. He is an imam at the People's Mosque in Cape Town and openly gay.

Kenya wants to set new norms, says AI's Irungu Houghton. He sees developments towards a more liberal direction: The courts struck down attempts to not register the LGBT commission. Last year the court declared anal testing on suspected gay men to be unconstitutional.  And  a ban was lifted on the lesbian movie "Rafiki" which was the first Kenyan movie to be shown at the Cannes film festival. It could be seen in Kenya for seven days after its initial banning.

Although the wait for a ruling now continues until May, Kenyan activists remain hopeful. "A ruling in favor of LGBT people would be a milestone not only for Kenya but for the continent," Houghton said.

Andrew Wasike contributed to this article.