16th October 2006
The Gay and Lesbian Coalition of Kenya is a recently formed umbrella body consisting of eight Kenyan groups of lesbian, gay, bisexual, trans and intersex (LGBTI) people, representing the interests and concerns of all LGBTI Kenyans.
As the National Stakeholders Conference meets to discuss the National Policy and Action Plan on Human Rights, we wish to draw the attention of the committee to the human rights violations experienced daily by gay and lesbian people in Kenya, the least of which is the criminalization of our private and consensual sexual relationships.
Kenya is bound not only by its own constitution and laws but also by international agreements. In this statement we want to draw your attention to two of these international agreements and specifically demonstrate why we consider paragraph 162 and 165 of the Kenyan Penal code to be in conflict with these.
The General Assembly of the United Nation recognizes in the preamble of the Universal Declaration of Human Rights (UDHR) that “...the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” There are no exceptions made; human rights are the inalienable rights that a person has simply because he or she is a human being.
While the UDHR and subsequent international human rights documents do not explicitly mention sexual orientation or gender identity, evolving conceptions of international human rights law include a broad interpretation to include the rights and protection of the rights of LGBTI people around the world. These include successful legal arguments based on the rights to privacy (UDHR, Article 12; ICCPR #17), equality (UDHR, Article 7; ICCPR #26), and freedom from discrimination (UDHR 7, ICCPR #2).
Other UDHR articles such as Freedom from Arbitrary Arrest (Article 9), Right to Asylum (Article 14), Right to Life, Liberty and the Security of Person (Article 3), Right to Freedom from Torture and Degrading Treatment (Article 5), and Right of Peaceful Assembly and Association (Article 20) have also been successfully referenced in human rights caseworks involving LGBTI people.
In the global arena, LGBTI issues have been dealt with at various UN forums. In 1992, a complaint against a law prohibiting sex between consenting male adults in the Australian state of Tasmania (a law similar to paragraph 162 of the Kenyan penal Code, a left-over from British colonization) was brought before the UN Human Rights Committee (the committee that monitors states’ implementation of the ICCPR). In 1994, the Committee found that the law violated the right to privacy jointly with the right to freedom from discrimination. The Committee noted that reference to “sex” in non-discrimination clauses should be interpreted as including “sexual orientation”, thereby affirming that rights must not be denied on the basis of this human characteristic.
Other UN human rights monitoring bodies have also emphasized that discrimination on the basis of sexual orientation is prohibited under international legal standards.
The ICCPR thus provides that States cannot curtail the enjoyment of human rights on the basis of sexual orientation. The UN Human Rights Committee has urged states not only to repeal laws criminalizing consensual sex in private between two men or two women, but also to enshrine the prohibition of discrimination based on sexual orientation into their constitutions and/or other fundamental laws.
All members of the Kenyan family cannot be said to have equal rights as long as paragraph 162 and 165 of the Kenyan Penal code exist. Whilst these draconian laws remain on our statutes, LGBTI people will continue to be the target of verbal and physical injury, sexual violence and social marginalization. Further to this, these laws inhibit the delivery of effective HIV prevention and treatment services to LGBTI people in Kenya, recognised by our own National AIDS Control Council in the Kenya Country Position Statement to UNGASS, 2006.
Enough is enough. It is time to scrap the laws that the British imposed upon us and left us with, laws that the colonizers themselves scrapped long ago. Let Kenya move out from the shadows of her colonial past and recognise the rights of her gay and lesbian citizens.
For more information on the Gay and Lesbian Coalition of Kenya, please contact firstname.lastname@example.org
Published on November 21, 2006 | OutRight Action International an LGBT human rights organization