Understanding the Equal Rights Case

02 Mar, 2019
In the recent Kenyan case, Eric Gitari, the director of National Gay and Lesbian Rights Commission seeks to have Sections 162 and 165 of the Penal Code decriminalised.


Mr. Gitari argued that the section 162 of the constitution which needs to be repealed has denied LGBT people the rights to privacy, health, equality, dignity and non-discrimination and also their freedom and security.


Section 162 reads: “Any person who has carnal knowledge … against the order of nature; or has carnal knowledge of an animal; or permits a male to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for 14 years.”


And Section 165 has it that a man who commits any act of indecency with another man, or procures a man to commit indecency with him, or attempts to procure the commission of any such act with himself or with another male may be jailed for five years.


It is a petition that has been strongly opposed by the several parties including the government, Some Christian and Muslim Organizations who want the case dismissed.


Kenya's Attorney General through Lawyer Jeniffer Gitiri has ,however, argued that declaring sections 162 and 165 of the penal code as unconstitutional would tantamount to allowing unnatural offences between people of the same sex who may have a legitimate expectation to enter into a marriage which is contrary of Article 45 of the constitution.


The three-judge bench comprising of Justices Roselyne Aburili, Chacha Mwita and John Mativo is expected the make a ruling on whether the laws will be allowed or not.


Petitioners in the case include the gay and Lesbian Coalition of Kenya (GALCK), the National gay and Lesbian Human Rights Commission (NGLHRC) and the Nyanza Rift Valley and Western Kenya Network (NYARWEK) .


South Africa and Angola have set a precedent in Africa by decriminalizing same-sex activities in their countries.