Presiding judges Roselyne Aburili, Chacha Mwita and John Mativo said Section 162 (a) and (c) of Kenya’s Penal Code says clearly that homosexuality is illegal in Kenya.
The law, under that section, states: “Any person who — (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.”
The National Gay and Lesbian Human Rights Commission had moved to court arguing that under Kenya’s 2010 Constitution, every person is said to be equal before the law.
The judges used the Penal Code to quash their plea.
“We, [therefore], decline to issue the orders as sought by the petitioners. The phrase [in Section 162 (a) and (c) of Kenya’s Penal Code] is clear,” said the judges.
The court also rebuffed the petitioners’ argument that if homosexuality wouldn’t be decriminalised, then the LGBTQ community would continue being stigmatised.
“There is no basis upon which the court can say they [LGBTQ community] will be discriminated. We, [therefore], dismiss the case that they will be discriminated,” said the court, adding: “Stigma is not exclusive to the LGBTQ community. Everyone has the right to access health.”
United Nations rights chief Michelle Bachelet urged LGBT activists and their allies to keep fighting for equality.
“Criminalizing acts targeting certain individuals based on who they are and whom they love is inherently discriminatory. It also sends a dangerous signal to broader society and encourages hostility and even violence against LGBT individuals,” Bachelet said in a statement.
A coalition of gay rights groups issued a statement expressing their “great distress” at the ruling, saying it “justifies the stigma, discrimination and violence meted against Kenyans” in the LGBT community.
Human Rights Watch said in a statement the decision was “a step backward in the progress Kenya has made toward equality in recent years.”
Outside the court, a Christian group sang choir songs and held aloft banners declaring “God forbids it and we say no!” as dejected members of the LGBT community streamed past.
“We are not here to speak hate, but we are saying no. And even at the court of appeal, we will still be standing as the church of Jesus Christ saying no,” said Apostle Kathy Kageni, from the Sozo Church of God.
Friday’s verdict had been awaited by activists across Africa.
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