Lesbian, gay, bisexual, trans and intersex (LGBTI) people have different statuses within the law in Kenya. It's important to understand the facts and legislation surrounding lesbianism in Kenya, as they reflect the broader challenges faced by the LGBTQ+ community in the country.
Map of LGBT rights in Africa. Yellow indicates illegal same-sex sexual acts.
Historical and Current Legal Status
Homosexual activity in Kenya is illegal, carrying imprisonment as punishment. Since August 1, 1930, this law has been enforced. Articles 162, 163, and 165 of the Penal Code prohibit homosexuality, with offenders facing up to 21 years in prison with hard labor and fines.
Same-sex marriage in Kenya is banned. Since February 2, 2010, the Constitution of Kenya has strictly defined marriage as a union between a man and a woman.
Censorship of LGBT issues in Kenya is state-enforced. The Kenyan Film Classification Board Guidelines of 2012 explicitly list homosexuality as requiring a restricted classification more egregiously than heterosexuality.
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Until 2009, there were no protections from discrimination provided to LGBTIQ+ people in Kenya. There are no legal protections from discrimination based on sexual orientation or gender identity. Similarly, there are no protections from discrimination in housing provided to LGBTIQ+ people in Kenya.
Same-sex adoption in Kenya is illegal. Since March 1, 2002, same-sex couples or even homosexuals have not been allowed to adopt. Chapter 141, Section 158 of Kenya's The Children Act states that an adoption order shall not be made if the applicant is a homosexual.
Serving openly in the military in Kenya is illegal. Since January 1, 1941, homosexuals have not been allowed to serve in the Kenya Defence Forces, although it's unclear if this is a written law.
Kenya does not ban conversion therapies that aim to change a person’s sexual orientation or gender identity.
The age of consent in Kenya is 18 years for heterosexuals.
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Same-sex sexual activity is prohibited under the Penal Code 1930, which criminalizes acts of ‘gross indecency’ and ‘carnal knowledge against the order of nature’. These provisions carry a maximum penalty of fourteen years’ imprisonment.
Expressions of homosexuality are illegal under Kenyan statutes and carry a maximum penalty of 14 years' imprisonment, or 21 years under certain aggravating circumstances. Sex acts between women are mentioned under the gender-neutral term "person" in Section 162 of the Penal Code and are enforced equally.
Sections of the Kenyan Penal Code make it a crime for consenting adults to “have carnal knowledge against the order of nature” - defined as sodomy - and for consenting adult men to engage in “gross indecency” with each other. A violation of Section 162 is punishable by up to fourteen years in prison.
Discrimination and Human Rights
“Kenya’s High Court has relegated people in same-sex relationships in Kenya to second-class citizenship, based on the absurd claim that the penal code is not discriminatory,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch.
Rights cannot be trampled upon in the name of social disapproval. Kenya’s anti-homosexuality laws are a colonial relic, first imposed by British colonizers in 1897. The laws are rarely enforced, but they underpin a broad array of human rights abuses and contribute to a climate of discrimination and violence.
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Police use the laws as a pretext to harass and extort money or sex from LGBT people, or to deny services to LGBT people who are victims of violence.
In 2016, Eric Gitari, an activist who was president of the National Gay and Lesbian Human Rights Commission (NGLHRC), filed a petition challenging the laws. Two other organizations, the Gay and Lesbian Coalition of Kenya (GALCK) and the Nyanza, Rift Valley and Western Kenya Network (NYARWEK), along with individual petitioners who had been personally affected by the laws, filed a second petition raising similar arguments.
Kenya’s failure to move forward on decriminalization of same-sex relations violates its obligations under international law, Human Rights Watch said.
Kenya’s government has adopted an ambivalent stance on LGBT rights. President Uhuru Kenyatta referred to homosexuality as “not acceptable” in a 2018 media interview but has previously said he would not tolerate anti-LGBT “witch hunts” and other forms of violence.
Many Kenyans believe that gay rights are against their religion - whether Christian or Muslim.
At a small, hidden church set up to offer comfort and support to LGBTQ people, the female pastor says a proposed bill is causing "a lot of panic, anxiety, fear". She believes the proposed legislation will increase violence against them.
The pastor and members of the church ask that they be kept anonymous because they say they have faced numerous security threats since it was established about 10 years ago. "It gives power to anybody that would want to do something to the queers. It fuels some kind of violence that now people are planning but holding back on," she tells me.
The NGLHRC published data on the number of incidents of ‘violence’ reported to its legal aid centers committed by state and non-state actors between 2014 and 2022. These totalled over 3,900 cases (increasing from 344 in 2014 to 901 in 2022, averaging 433 a year), noting that other incidents may go unreported.
LGBT organizations reported that police failed to prevent harassment against LGBT persons during anti-LGBT protests in coastal communities in March. The Kenya National Commission on Human Rights (KNCHR) received at least 60 reports from LGBT persons who believed they were at risk of being attacked during the protests in March and September.
In May, Amnesty International and the National Gay and Lesbian Human Rights Commission (NGLHRC) published a report which showed that LGBT asylum seekers and refugees in Kakuma refugee camp routinely suffer hate crimes, violence including rape, and other serious human rights violations.
Research published in 2019 found that 53% of LGBT people had experienced physical violence in their lifetime, with 33% reporting incidents in the previous year, while 44% had experienced sexual violence (25% in last year).
In March, a report found that hundreds of gay men had left major Kenyan Cities for fear of persecution.
Legislative Initiatives and Court Rulings
“Kenya has missed an opportunity to take a clear stance against discrimination,” said Njeri Gateru, director of the National Gay and Lesbian Human Rights Commission.
The ruling flies in the face of several other Kenyan court decisions that have upheld LGBT people’s fundamental rights. In 2015, the High Court ruled in favor of NGLHRC in a case involving freedom of assembly and association. The Non-Governmental Organizations Board (NGO Board), a government agency, had refused to register NGLHRC, claiming that it was promoting immorality. The court found that the NGO Board was impermissibly discriminating on the basis of the presumed sexual orientation and gender identity of NGLHRC’s personnel, in violation of constitutional protections around non-discrimination.
On transgender issues too, Kenyan courts have moved the needle forward. In 2014, the High Court ruled in favor of a transgender activist, Audrey Mbugua, on her right to have her school certificate reissued with her female name, and with no gender marker.
In January, Angola issued a revised penal code that no longer punished so-called “vices against nature.” Other African countries that have revoked anti-homosexuality laws through penal code reform in recent years include Seychelles, Mozambique, Sao Tome and Principe, and Lesotho.
Meanwhile, courts around the world are striking down laws against homosexual conduct, many of them, like Kenya’s, colonial legacies. India decriminalized same-sex relations through a landmark court ruling in 2018, as did Trinidad & Tobago, while Belize’s Supreme Court struck down its sodomy law in 2016.
In a trip that Mr. Kaluma says was paid for by Kenya's parliament, he attended a meeting of the newly created African Interparliamentary Forum on Family Values and Sovereignty held in Uganda in March.
The majority leader in Kenya's lower parliamentary chamber, Kimani Ichung'wah, tells the BBC that the ruling Kenya Kwanza alliance does not have a position on Mr. Kaluma's proposed legislation but it will give its MPs a free vote if it is tabled.
In April, the High Court in Mombasa issued an interim ruling on a case brought in October 2023 by the Centre for Minority Rights and Strategic Litigation and Mr. JM. The court reportedly ordered anti-LGBT groups and individuals to refrain from inciting violence against LGBT people in Kenya.
In September, the Kenyan Supreme Court upheld its February judgment, thus reaffirming the constitutional right to association of the NGLHRC.
In March, Kenya’s Court of Appeal ruled that the use of forced anal exams to determine whether gay men engaged in sex is illegal. The court determined such examinations to be not only unconstitutional but unreasonable, totally unnecessary and violative of Article 19(2) of the Constitution.
In April, the High Court in Kenya held that the refusal by the NGO Coordination Board to register an LGBT rights NGO (NGLHRC), on the basis that same-sex activity is criminalised in the East African country, was unconstitutional. The Board was accordingly ordered to register the NGO.
In August, members of Kenya’s Parliamentary Committee on Justice and Legal Affairs rejected the introduction of a bill similar to the Anti-Homosexuality Bill in Uganda.
The Supreme Court is the apex court in Kenya, meaning that the ruling is final and concludes a legal case lasting ten years.
In responding to the judgment, the Executive Director of NGLHRC, Njeri Gateru, said: “The judges have chosen to stand by the constitution that allows for like-minded persons to meet and organise, formally.
In a separate case, a Court of Appeal in Mombasa, Kenya, ruled on 22 March 2018, that conducting forced anal examinations on people who are accused of same-sex relations is unconstitutional.
In December 2023, human rights lawyers, LGBTQI activists, and members of Parliament filed a case before the Ugandan Constitutional Court to challenge the law’s constitutionality.
On February 28, 2024, the Ghanian Parliament passed an anti-LGBTQI bill entitled the Human Sexual Rights and Family Values Act.
In April 2023, the Family Protection Bill was submitted by a member of the Kenyan Parliament to the National Assembly.
The Family Protection Bill
George Peter Kaluma's move comes after neighbouring Uganda adopted a tough new anti-gay law, rejecting threats by US President Joe Biden to impose sanctions and travel restrictions on "anyone involved in serious human rights abuses".
"We want to prohibit everything to do with homosexuality," Mr. Kaluma tells me, adding that his bill will be much broader than the legislation passed by Uganda's parliament and approved by President Yoweri Museveni in May. It proposes life imprisonment for anyone convicted of homosexuality, and the death penalty for so-called aggravated cases, which include having gay sex with someone below the age of 18 or where someone becomes infected with a life-long illness such as HIV.
"The bill will propose a total ban on what the West calls sex-reassignment prescriptions and procedures, and prohibit all activities that promote homosexuality, in terms of... gay parades, drag shows, wearing the colours, the flags, the emblems of the LGBTQ group," Mr. Kaluma says.
Mr. Kaluma tells me he wants their asylum to be revoked, and for them to leave Kenya.
Although Mr. Kaluma attended the meeting in Uganda co-sponsored by FWI, he denies working with the group on his bill, which he says will propose a ban on teaching CSE saying it is part of the "LGBTQ agenda".
Mr. Kaluma argues that the "LGBTQ agenda" has become a "big industry, especially in the West" and, despite opposition to it from some of their own citizens, Western governments want to promote it in Africa.
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