Kenya’s High Court is on Friday expected to deliver a long-awaited ruling on whether to scrap colonial-era laws which criminalise homosexuality, a verdict that could have repercussions across Africa.
However, the LGBT community fears yet another postponement. In February, the three-judge bench pushed back its decision, citing a heavy workload, prompting dismay from a persecuted community who have fought for years to be accepted.
“There are a lot of mixed emotions around this because people are just wary of the fact that it could be postponed yet again,” Brian Macharia of the Gay and Lesbian Coalition of Kenya (GALCK), one of the petitioners, told AFP.
“Everyone is just hopeful and we recognise that things could go either way.”
Gay rights organisations are asking the court to scrap two sections of the penal code that criminalise homosexuality.
One section states that anyone who has “carnal knowledge… against the order of nature” can be imprisoned for 14 years. Another provides for a five-year jail term for “indecent practices between males”.
Activists believe Kenya has a chance to blaze a trail in Africa where homophobia is virulent in many communities, with similar laws in over half the countries on the continent.
While convictions under the decades-old laws are rare, gay activists say the legislation is unconstitutional and fuels homophobia.
The National Gay And Lesbian Human Rights Commission says it dealt with 15 prosecutions under the laws in 2018, with no convictions recorded.
The petitioners argue that under Kenya’s 2010 constitution, every person is said to be equal before the law.
However members of the LGBT community are blackmailed, evicted, fired, expelled from school, or assaulted over their sexual orientation, but are unable to access justice without effectively confessing to a crime.
“LGBTQ people in Kenya for years and years have faced and suffered violence and harm in unimaginable ways, but justice has not been afforded to them because of the penal code,” said Macharia.
Activists are optimistic of an eventual ruling in their favour, given recent decisions by the court.
In March, the High Court banned forced anal testing of men suspected of being gay.
And in September, a court ruled that “Rafiki” (“Friend”), a film about a lesbian love affair which was the first Kenyan movie to be shown at the Cannes film festival, could be screened domestically for seven days after its initial banning.
Macharia said Kenya’s powerful churches had been holding special events in the leadup to the ruling to fight what they term “the LGBT agenda”.
“The church is spreading a lot of hatred, a lot of misinformation,” he said.
The petition is being fought by an association of Catholics, Protestants and evangelicals.
Twenty-eight out of 49 countries in sub-Saharan Africa have laws penalising same-sex relationships, according to Neela Ghoshal, a Human Rights Watch (HRW) specialist in lesbian, gay, bisexual, and transgender rights.
The death penalty is 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-Shabaab jihadist group.
Angola, Mozambique and Seychelles have scrapped anti-gay laws in recent years.
On the other hand, Chad and Uganda have introduced or toughened legislation.