Last week The UN passed a resolution on Human Rights, Sexual Orientation and Gender Identity. The resolution was adopted by a vote of 23 in favour, 19 against, and 3 abstentions. It requests that the High Commissioner should establish a committee to document discriminatory laws and acts of violence against individuals based on their sexual orientation and gender identity.
The Commission will be active in all regions of the world, including Cameroon, Ghana, Nigeria and Uganda who all actively voted against its formation. The Commission will report on how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity.
In addition the UN will convene a panel discussion during the nineteenth session of the Human Rights Council which will pick over the commission’s findings and suggest follow on recommendations to the High Commissioner.
In the meantime here is CHRI’s assessment of the LGBT situation in Kenya.
Law that Criminalises Homosexuality
Penal Code of the Laws of Kenya, Rev. 2009
Under section 162 it is an offence to have carnal knowledge of any person against the order of nature or of an animal; or to permit a male person to have carnal knowledge of him or her against the order of nature. Whoever commits this felony is liable to imprisonment for fourteen years, or in the case that said carnal knowledge was without the consent of the person, or with consent obtained by force, intimidation or false representations, imprisonment for twenty one years.
Under section 163 it is an offence to attempt to commit any of the offences specified in section 162, whoever commits this felony is liable to imprisonment for seven years.
Under section 165 it is an offence for any male, whether in public or private, to commit any act of gross indecency with another male person, or to procure or attempt to procure another male person to commit any act of gross indecency with him. This felony is liable to imprisonment for five years.
Under the Sexual Offences Act of 2006, section 3 criminalises rape by a woman or man who intentionally and unlawfully commits an act which causes penetration with his or her genital organs; and the person does not consent to this penetration, or the consent is obtained by force or intimidation. Whoever is guilty of this felony is liable to imprisonment from ten years to life.
Practical Consequences of the law
In February 2010 police crashed a ‘gay wedding’ and arrested five men.
GALCK – Gay and Lesbian Coalition of Kenya is a group which seeks to promote recognition, acceptance and defend the interests and rights of LGBTI organizations and their members including their health rights. http://galck.org/
Constitutional Clause on Equality or Right to Privacy
Constitution of Kenya, 2010
Article 27 guarantees equality before the law, where equality includes the full and equal enjoyment of all rights and fundamental freedoms. It also guarantees the right to equal protection and equal benefit of the law. Neither the State nor a person shall discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Article 24. expands upon limitations to the rights and freedoms of the constitution and affirms that right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; and the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.
Article 28 guarantees the innate and inherent dignity of every person and the right to have that dignity respected.
Article 31 guarantees to every person the right to privacy including having their family or private affairs unnecessarily revealed or the privacy of their communications infringed.