16 Jul State, Law and Sexual Orientation in Africa: A peep into the judgment of the Kenyan High Court
Solomon T. Ebobrah is a Legal Adviser with the International Commission of Jurists
Decades after the end of colonialism in Africa, judiciaries in African States are confronted with the challenge of determining the extent to which the post-colonial state in Africa can legitimately interfere in the private lives of people as expressed in their preferred sexuality with another consenting adult behind closed doors. Judiciaries in Kenya and Botswana are the latest to confront the challenge, dealing with arguably similar questions, relying on similar expressions of judicial principles of constitutional interpretations but arriving at distinctively different results with varied consequences for sexual minorities in both States. While the High Court in Botswana held that colonial era laws that criminalize same sex expressions of intimacy violate certain fundamental rights in the Constitution of Botswana, the High Court of Kenya took the opposing view and ruled that similar colonial era laws in the Kenya Penal Code were valid expressions of the values and culture of the Kenyan people and therefore were not in violation of equivalent fundamental rights in the 2010 Constitution of Kenya.
With the benefit of observing the trial proceedings in Kenya on behalf of the International Commission of Jurists, I review the judgment and highlight problematic issues in the court’s ruling, paying particular attention to how the Court responded to international and comparative law invoked by the parties.
The judgment of the Constitutional and Human Rights Division of the High Court of Kenya (the Court) was delivered in respect of two (consolidated) cases – EG v The Hon. Attorney General of Kenya (Petition no 150 of 2016) and JM and 7 Others v The Hon. Attorney General of Kenya (Petition no 234 of 2016). Both cases involve challenges to the constitutionality of sections 162 (a) (c) and 165 of the Kenya Penal Code – British era legislations retained in the Kenya law books. Similar provisions in the criminal laws of States in South Asia have previously been struck down by courts in those countries.
In EG v The Hon. Attorney General, the Petitioner, a lawyer and director of a non-governmental organization brought action on behalf of himself and Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) persons in Kenya. The Petitioner stated that as a gay man he has suffered various acts of hostility and discrimination, and that other members of the LGBTIQ Community in Kenya have also suffered various acts of hostility and discrimination on the basis of their actual or perceived (minority) sexual orientation. Accordingly, he asserts that sections 162 and 165 of the Penal Code are unconstitutional to the extent that they are applied to criminalize consensual same sex adult sexual conduct even where it takes place in private. He contended further that the impugned sections were vague and uncertain so that they were in breach of the principle of legality and therefore infringed on the rights of Kenyans. He therefore invited the Court to either strike down the impugned sections or interpret them to exclude their application to cases of private consensual sexual conduct of adult persons of the same sex.
For their part, the eight Petitioners in JM and 7 Others v The Hon. Attorney General challenged the constitutionality of the impugned sections for violating the rights guaranteed in the 2010 Constitution of Kenya and specific provisions of the African Charter on Human and Peoples’ Rights, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
The Attorney General’s response was that the petitioners (collectively) failed to prove the unconstitutionality of the impugned sections, that the rights in the Constitution were not absolute, that granting the reliefs sought would amount to opening the doors to same sex marriage, which (according to the Attorney General) is not permitted under the 2010 Constitution, that judicial decriminalization of same sex conduct would amount to usurping the legitimate role of Parliament, and that retention of the impugned sections was in acknowledgement of the ‘supremacy of God as the objective moral law giver’.
The arguments of the parties (including interested parties) and the amici curiae were presented extensively over a number of days during which the Court arguably gave the impression of making deliberate efforts to hold out itself as a detached and neutral adjudicator. For instance, moving from a small court room to a relatively larger court room in order to accommodate supporters and spectators on both sides, the Court refrained from insisting on technicalities in a court room full of local and foreign spectators and interested parties. The Court was flexible in time allotted to the parties and accommodated affidavits of the petitioners’ expert witnesses who could not make it to court.
In its judgment delivered on 24 May 2019, the Court declined to find for the petitioners on any of the grounds of constitutional challenge. In relation to the contention that the impugned sections were unconstitutional on grounds of vagueness and uncertainty, the Court took the view that in spite of the absence of a definition of the affected terms in the Penal Code, law dictionaries and judicial precedent had sufficiently defined the terms so that the impugned sections were neither vague nor uncertain. With regards to the constitutional validity of the impugned sections, the Court basically divided the challenge into two broad categories and adopted a different approach in dealing with each category even though it separately addressed each constitutional provision raised by the Petitioners. In the first category consisting of the right to equality and freedom from discrimination, the right to the highest attainable standards of health, the right to fair hearing and the right to freedom of conscience, religion, opinion and belief, faced with solid legal arguments built around international law and comparative jurisprudence, the Court opted to frame and resolve the issues as questions of evidential burden that the Petitioners were unable to discharge. Despite the testimony supplied in affidavit form by the Petitioners, the Court was consistent in its position that the Petitioners had not adduced any credible evidence to substantiate the alleged violation of any of the constitutional rights claimed. Effectively, the Court avoided the legal question whether the impugned sections violated the relevant provisions of the Kenyan Constitution or the provisions of international law invoked by the Petitioners.
As for the rights to human dignity and privacy, the Court elected to place them in a second category since it took the view that the petitions ‘stand or fall on these two articles’. After engaging in a fairly elaborate and extensive analysis, the Court reasoned that the rights to human dignity and privacy under the Constitution of Kenya are not absolute and may be limited by law insofar as such law is reasonable and justifiable in an open and democratic society. Advancing the argument that consensual same sex conduct between adults, even in private could still offend the values, principles and purpose of the Constitution of Kenya, the Court concluded that the impugned sections do not violate the rights to human dignity and privacy of the petitioners. The Court then invoked article 45(2) of the Kenya Constitution which recognizes marriage between adult persons of opposing sex to arrive at a conclusion that decriminalizing same sex between consenting adults even in private ‘would contradict the express provisions of Article 45(2)’.
This judgment of the High Court of Kenya comes at a delicate time for the LGBTIQ Community in Africa. Within the last one year, homophobia has been lifted to a continental scale. In August 2018, the African Commission on Human and Peoples’ Rights (Commission) bowed to pressure from the political organs of the African Union and withdrew the observer status it had previously granted to the Coalition of African Lesbians (CAL) – an organization dedicated to advancing the rights of women, especially sexual and gender minorities in Africa. The withdrawal was in response to sustained demand by the African Union Executive Council which had called on the Commission to consider ‘African Values’ in the evaluation of applications for observer status.
In spite of the Commission’s expert recognition in its resolution 275, of the need to protect the human rights of sexual minorities in Africa, homophobia continues to gain ground in expression of an African brand of populism within political and cultural circles. Against this background, the neutrality of courts and their ability to take a counter-majoritarian posture where required by constitutions becomes critical. It is therefore not surprising that the judgment of the High Court of Kenya has attracted eminent critical analysis. For instance, Makau Mutua has taken the view that the Court’s approach has the effect of restricting instead of expanding constitutional freedom and liberty. Mutua insists that the provision in the Constitution of Kenya which permits marriage by adults of opposite sex does not prohibit same sex conduct by consenting adults and therefore cannot be a basis for upholding colonial era laws that violate the Constitution.
Considering that the issues raised and addressed in these petitions have been the subject of determination under international human rights law and in the judgments of other national courts, the approach adopted by the High Court of Kenya to the international and comparative law deserves some attention. The Petitioners displayed industry in taking advantage of article 2(5) (6) of the 2010 Constitution of Kenya which provides that the ‘general rules of international law’ and ‘any treaty or convention ratified by Kenya’ shall form part of the law of Kenya. As the Court itself acknowledges, the Petitioners invoked relevant provisions of the African Charter and the international bill of rights that recognize and guarantee the rights of sexual minorities. Yet, despite dedicating a section of the judgment to reproducing important comparative jurisprudence from national and international courts and adjudicatory bodies that affirm that anti-sodomy laws violate fundamental human rights in a significant manner, the Court chose to brand this compelling body of jurisprudence as merely persuasive and not binding. The Court refused to be persuaded by the rich jurisprudence because it failed to find unanimity in the position of courts around the world. Instead, the High Court of Kenya reasoned that the jurisprudence was inapplicable to the specific context of Kenya since it has not found decriminalization in any state with constitutional provisions that recognize marriage between adult persons of the opposite sex.
Arguably, there are very good grounds in the judgment of the High Court of Kenya that leaves the door open for the higher courts in Kenya to reopen and address these threats to the rights of sexual minorities in Kenya and Africa.
 Pgs 274 – 279 of the Judgment.