Kenya’s High Court Upholds Law Criminalizing Homosexual Sex

A courtroom in Nairobi was packed in February as the High Court heard arguments. The ruling on Friday keeps Kenya aligned with most of Africa, where gay sex is criminalized.
Ben Curtis/Associated Press

Kenya’s High Court on Friday upheld laws that criminalize gay sex, declining to join the handful of nations that have recently abolished a prohibition imposed by Britain during the colonial era.

The unanimous ruling by a three-judge panel of the court, announced in a courtroom packed with activists who wanted to see the laws overturned, keeps Kenya aligned with most of Africa. Anti-gay laws and conservative cultural mores remain prevalent across most of the continent. In addition to the threat of prosecution, discrimination and violence against lesbian, gay, bisexual and transgender people are common.

“A sad day for the rule of law and human rights,” said Eric Gitari, a co-founder of the National Gay and Lesbian Human Rights Commission, a Kenyan civil rights group, who was one of the petitioners in the case. He said he and others would appeal the ruling.

Téa Braun, director of the Human Dignity Trust, an international gay rights advocacy group, noted in a statement that Kenya’s constitution guarantees human dignity and freedom from discrimination.

“Yet in handing down this disappointing judgment, the court has ruled that a certain sector of society is undeserving of those rights,” she said.

The Kenyan ruling came on the same day, however, that Taiwan had its first same-sex weddings, which were legalized last week by the legislature.

More than 70 countries criminalize gay sex, most of them Muslim countries or former British colonies, according to advocacy groups.

In the 19th century, British colonial rulers — far more than their counterparts from other European countries — outlawed same-sex relations in dozens of colonies on multiple continents. After gaining independence, most of those nations kept the bans in place, often using a version of the Victorian language the British had left behind.

At a meeting last year of Commonwealth heads of state, Prime Minister Theresa May said Britain regretted that history, and she urged other nations to change their laws. Britain did not repeal its own law against homosexual acts in England and Wales until 1967, with similar laws repealed later in Scotland and Northern Ireland. In the United States, gay sex was illegal in 13 states until a Supreme Court ruling in 2003.