Lesbian, gay, bisexual, and transgender (LGBT) people in Kenya face legal challenges not experienced by non-LGBT residents. Sodomy is a crime per Section 162 of the Kenyan Penal Code, which can be sentenced to 14 years in prison, and any sexual practices between men (called "gross obscenity") are crimes under article 165 of the same law, punishable by imprisonment 5 year. States do not recognize relationships between persons of the same sex; same-sex marriage is prohibited under the Kenyan Constitution. There is no explicit protection against discrimination on the basis of sexual orientation and gender identity. Adoption is forbidden for homosexual people.
Transgender people have historically been discriminated against, and there are no legal provisions relating to transgender rights. However, there are a series of court decisions that support transgender rights, such as the right to change the names that appear on legal documents. It is not immediately clear whether these decisions are substantive laws on the issue of gender law change.
Kenyans are very conservative, and the vast majority of people have a negative view of LGBT people. Homosexuality "is largely considered taboo and disgusting for culture and morality" in Kenya. However, organizations work to protect and enhance LGBT rights.
Video LGBT rights in Kenya
Public opinion
According to the Pew Global Attitudes Project 2007, 96 percent of Kenyans believe that homosexuality is a way of life that no society should accept, which is the fifth highest level of absence in 45 countries surveyed.
The Kenyan non-governmental human rights commission published, in 2011, the first research paper on the legal and social status of LGBTI people in Kenya. Among those who went out or were exiled to family members, 89 percent reported that they were not recognized. Employees are reported to have been dismissed or experienced hostility, ridicule, humiliation, and discrimination when their sexual orientation or gender identity is known in the workplace.
Traditional religious and cultural values ​​play an important role in these numbers. Leaders in three dominant religions in Kenya, Catholicism, Anglicanism and Islam, condemn homosexuality and transgender identity as a sign of decadence, disease, and immorality.
In June 2011, Kisauni's principal, Sheikh Majid Obeid blamed inflation and drought on people doing same-sex acts. Imam Khanifa, Imam and Imamate secretary of Kenya's organizing secretary, said: "We ask Kenyans to avoid the business owned by these people and further show them open discrimination as a way to stop cruel acts, they actually violate the rights of others and should not be accepted among the people ".
A gang of 100 people led by religious leaders and village elders on 23 February 2012 stormed a homosexual meeting at the CDF Likoni Youth and Youth Empowerment Center. Likoni police boss Abagarro Guyo and Moses Ouma district officials then ordered the meeting to close. Sheikh Amir Zani of the Muzadhalfa mosque described the seminar as "illegal, ungodly, and unacceptable". He threatened to "mobilize people to persuade gays if they arranged such meetings again". But Youth and Sports district officer David Ogal defended the seminar organizers and accused people of misunderstanding their purpose.
Here we are dealing with a very important education for vulnerable groups, including... gay.... We offer peer education and HIV/AIDS to the youth because they are at the highest risk of infection.... The gay community, like other groups, approached us and asked to be educated about safe sex. They have the right to safe sex. By doing this, we do not promote homosexuality but instill knowledge. There is much social discrimination and stigma about this issue and we as a society have to fight it.
The Kenyan National Commission on Human Rights reported in April 2012 that,
LGBI is discriminated against, stigmatized and subjected to violence because of their sexual orientation. In cases where they need medical care, they suffer the stigma perpetuated by health care providers who violate their privacy and confidentiality by exposing their sexual orientation to other colleagues at the facility. Healthcare providers are unfriendly and barely understand their sexual and reproductive health needs.... LGBI faces physical abuse by community members who mock and attack them for practicing "unnatural" sexual relationships. In cases of assault by the judicial mafia, police often fail to rescue them. Once captured, the police subjugate them to unnecessary searches of unnecessary bodies and homes that allegedly seek evidence to link them to other crimes. They are profiled as drug users, former convicted prisons or individuals with criminal track records. They often face arbitrary arrests, often held in police stations, unnecessary torture and harassment targets by police who extort money from them and are only released after bribing their way out. They also suffered sexual harassment from the arresting officers.... When their identities are found, LGBI can not find a job or do any other form of business - such as running a kiosk. Sometimes, they have to keep moving to different residential areas to hide their identities.... Furthermore they are often expelled from their rented house by neighbors and criticized for their orientation which is termed a crime. In cases where they are not evicted..., they are not allowed to use public utilities in residential compounds such as swimming pools. LGBI also can not access spiritual food from the community because they are labeled as a crime and teachings in places of worship interpret the activities of LGBI as unnatural and unacceptable.
In response, Peter Karanja, secretary-general of Kenya's National Council of Churches, said on May 11, 2012,
We are concerned that the direction of the debate has been taken is the recognition of homosexuality and prostitution that goes against African beliefs and more our Christian principles. It is appropriate for reflective discussion by our community in recognition of our values ​​and beliefs. This is the view shared by our Muslim brothers and sisters. But we do not imply that those who practice it should be locked up, we believe they need help to change from this.
Julius Kalu, a bishop of the Kenyan Anglican Church in Mombasa, reportedly said in July 2012 that the movement to allow same-sex marriage posed a greater threat to the Christian church than terrorism, although Christians in Kenya have experienced some terror attacks in 2012. However , on August 11, 2012 during a meeting with LGBT Christians, Kalu denied having made a statement: "It's not me saying that gays are worse than terrorists.Never, yet all things work together for good for those who love God and I admit to you that the article, however, underestimated and famous has helped me to know much about LGBT people, so I have been contacted by my bishops in listening groups in the UK, Canada [,] and LGBTI people in Kenya So let me explain this problem, I never say such a thing! I always see or even meet LGBTI and especially from Kenya. it's embarrassing to me that I've been pasturing LGBTI people in the Anglican Church when I do not even know! "The murder of Tanzania's LGBT human rights activist in July 2012, Maurice Mjomba, was raised during the meeting and Kalu reportedly" looked deeply disturbed, saddened, and shocked by sadness "by the news.According to the report," he stated that there is a need for human society to live in love, care and harmony with each other without specifying indifference. "He condemns the killing of Mjomba as a" cruel and timid "act and expressed the wish that someday LGBTI people will live in a free world without" violence and discrimination".
In 2014, the Kenya Film Classification Agency banned the LGBT-themed Movies of Our Life Stories created by the Nairobi-based art group from distribution or screening in Kenya, arguing that it was " promote "homosexuality.
In 2015, Mark Kariuki, head of the Evangelical Alliance in Kenya and a bishop, said that US President Barack Obama should "abandon gay talks in America" ​​during his state visit to Kenya. He also said that he did not want to "open the door for [Kenya] to be destroyed."
Maps LGBT rights in Kenya
Views of government officials
In November 2010, Kenyan Prime Minister Raila Odinga said the behavior of gay couples was "unnatural" and that, "If homosexuals are found to be arrested and taken to the relevant authorities". He asserted that "there is no need for homosexual relations" because the latest census shows there are more women than men. He says it is "madness for a man to fall in love with another man while there are many women" and that "there is no need for women to engage in lesbianism but they can bear children". A few days later, Odinga refused to order the arrest of a gay couple, saying she only meant that same-sex marriage was illegal in Kenya.
In November 2010, the prison commissioner, Isaiah Osugo, announced plans for closed-circuit television surveillance in Kenyan jails to curb sex among male prisoners.
Kenya Supreme Court Chief Justice Willy Munyoki Mutunga, said at the first stone laying ceremony for Uganda's FIDA in Kampala on September 8, 2011,
Another marginalization limit is the gay rights movement. Gay rights are a basic human right. Here I am only limiting my statements to the context of human rights and the social justice paradigm, and avoiding the controversy that exists in our constitution and various laws. As far as I know, our human rights principles do not allow us to selectively apply human rights. We need clarity on this issue in the human rights movement in East Africa, if we have to face the challenges pioneered by powerful political and religious forces in our midst. I find arguments made by some of our human rights activists, the so-called "moral arguments", only rationalizations to use the principles of human rights in an opportunistic and selective manner. We need to unite opposing points of view within the movement of this issue for a final and conclusive debate.
When former US President Barack Obama visited Kenya in July 2015, Kenyan President Uhuru Kenyatta denied Obama's stance on equal rights for all, including sexual orientation, stating that for the rights of LGBT Kenya is a problem and not in line with Kenyan culture.
In April 2018, Kenyan President Uhuru Kenyatta said that LGBT rights were "unacceptable" and "unimportant to the people of the Republic of Kenya." He also added that the issue of LGBT rights in Kenya is not a "matter of human rights" but a "community and cultural [Kenya] issue."
Law on same-sex sexual activity
Statute
Sex acts between men are illegal under Kenyan law and carry a maximum sentence of 14 years in jail, except for 21 years under certain circumstances. Sex acts among women are not specifically mentioned in the law, although it can be argued that the gender-neutral term "person" in Section 162 of the Criminal Code covers women. Indeed, Prime Minister Raila Odinga on 28 November 2010 called for them to be arrested along with gay men.
The 1930 Kenyan Criminal Code, as revised in 2006, provides the following:
- Section 162. Unnatural violations.
- Anyone who -
- (a) have worldly knowledge of anyone who opposes the natural order; or
- (c) permit a man to possess earthly knowledge of himself against the natural order, guilty of committing a crime and may be imprisoned for fourteen years:
- Provided, in the case of violations under paragraph (a), offenders shall be subject to imprisonment for twenty-one years if -
- (i) the offense was committed without the consent of a person known to be physically; or
- (ii) the offense was committed with the consent of the person but the consent was obtained by force or by such threats or intimidations, or by fear of physical harm, or by a misrepresentation of the nature of acting.
- Section 163. Trying to commit an abusive violation.
Anyone who tries to commit one of the offenses mentioned in section 162 is guilty of a crime and can be sentenced for seven years.
- Section 165. Indecent practices among men.
Any man who, in public or private, commits any indecent acts with another person, or asks another man to commit indecent acts against him, or attempts to obtain a commission from such action by which man even. people with themselves or with other men, whether public or private, guilty of a crime and jailed for five years.
Kenya's Human Rights Commission reported in 2011 on how this law has an indirect but highly detrimental effect on LGBTI people, saying,
The same sexual practices of sex remain criminalized... and although there are some beliefs under sections 162 to 165 of the Criminal Code..., LGBTI is routinely harassed by police, held in detention houses outside the constitutional period without charge. favored against them, and presented in court on false charges. Closely related to this, it is a cartel of corrupt police officers who routinely blackmail and blackmail LGBTI people with threats of arrest and imprisonment if they do not give bribes.... LGBTI sex workers, mostly MSM [men who have sex with men] are often asked for bribes and sexual assistance by male police officers in exchange for their freedom and security.... Those who fail to provide bribes or sexual assistance are charged with charges charged and sometimes raped by state security officers.
Constitutional provisions
The Kenyan Constitution, which came into effect August 27, 2010, does not explicitly protect the rights of LGBTI people because, according to experts drafting the constitution, the majority of Kenyans will reject the constitution in a referendum to adopt it.
However, many argue that Kenyan laws that discriminate against LGBTIs are unconstitutional and void because of the widespread protection of the constitution of civil and human rights. Peter Anaminyi, national director of Feba Radio Kenya, estimates in June 2011 that within 18 months there will be a challenge to the constitutionality of the Kenya Criminal Code.
Article 2
Article 2 of the Kenyan Constitution provides, in paragraph (5) that "the general rule of international law shall be a part of Kenyan law" and, in paragraph (6), that "[ny] ny treaty or convention ratified by Kenya shall be part of law Kenya under this Constitution ". In paragraph (4), the constitution states, "[a] ny law, including customary law, which is inconsistent with [the Constitution] void as far as inconsistencies, and any acts or omissions in opposition to [the Constitution] are invalid." The next section of this Wikipedia article contains Kenya's obligations under international law and treaty on LGBTI rights. To the extent that Kenya law violates voluntary or non-voluntary obligations under international law, this law may be null and void according to Article 2.
Article 10
Article 10 (2) (b) The Kenyan Constitution states that, "National values ​​and principles of government include... human dignity, equality, social justice, inclusiveness, equality, human rights, non-discrimination and protection from marginalized... "Regarding this provision," There is, there is a solid basis [to] one to oppose the violation of the dignity [LGBTI of their people]... on the basis of their gender or sexual orientation "is a compelling reason to participate in inclusion, non-discrimination and equality as well ".
Article 19
Article 19 of the Kenyan Constitution provides that,
(1) The Bill of Rights [Articles 19-59] is an integral part of Kenya's democratic state and is a framework for social, economic and cultural policies.
(2) The objective of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and society and to promote social justice and the realization of the potential of all human beings.
Article 20
Article 20 (3) (b) Kenya's Constitution requires courts, when applying the Bill of Rights provisions, to "adopt the most favorable legal interpretations enforcing fundamental rights or freedoms". About this article, Macau Mutua, chairman of Kenya's Human Rights Commission and dean at the University at Buffalo Law School, State University of New York, said that "if the right is opposed, the court must take the most liberal interpretation of the law to avoid denying the right".
Article 24
Article 24 (1) of the Kenyan Constitution states that, "The fundamental rights or freedoms in the Bill of Rights shall not be restricted except by law, and then only to the extent that such restrictions are natural and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all the relevant factors.... "
Article 27
Article 27 of the Kenyan Constitution provides that,
- Everyone is equal before the law and is entitled to equal protection and equal benefits of the law.
- Equality includes the full and equal enjoyment of all fundamental rights and freedoms.
- Women and men have the right to equal treatment, including the right to equal opportunities in the political, economic, cultural and social spheres.
- The State may not discriminate directly or indirectly against anyone on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, skin color, age, disability, religion, heart conscience, belief, culture, dress, language or birth.
- A person shall not discriminate directly or indirectly against any other person on any grounds determined or contemplated in clause (4).
Regarding this article, The Equal Rights Trust and the Kenyan Non-Governmental Human Rights Commission said in 2012,
Although the Constitution does not explicitly regulate non-discrimination on the basis of sexual orientation and gender identity, there is room for this to be improved through subsequent courts or legislation. Article 27 (4) of the Kenyan Constitution 2010 states that "the state shall not discriminate directly or indirectly on any ground, including [registered characteristics]", while Article 27 (5) provides that no person shall discriminate on any basis. "Determined or contemplated in clause (4)". Thus defined, the prohibition of discrimination by state and non-state actors should be read as inclusive of sexual orientation and gender identity.
In a May 2012 submission to the UN Human Rights Committee, the Kenyan government agreed with the interpretation of this Article 27 (4).
Macau Mutua argues that the Kenya KUHP is unconstitutional under this article. He says,
Article 27, constituting Constitutional Equivalence, gives "everyone" is "equal before the law" and has "equal protection right" before the law. It is a firm, categorical, and thorough protection against discrimination. The article does not exclude homosexuals from the scope of constitutional protection. Furthermore, Article 27 (4) prohibits discrimination on the basis of "sex". The prohibition of sex-based discrimination has been understood to include sexual orientation. The Constitution removes all space by prohibiting direct and indirect discrimination.
Article 28
Article 28 of the Kenyan Constitution states that, "Everyone has an inherent dignity and the right to have a dignity that is respected and protected." This article offers "a new push for LGBTI community rights".
Article 31
Article 31 of the Kenyan Constitution states that, "Everyone has the right to privacy...."
same-sex marriage and partnership
Article 45 (2) The Kenyan Constitution specifically endorses same-sex marriage but does not speak of same-sex marriage. "Every adult has the right to marry the opposite sex, based on free consent from the parties".
In October 2009, two Kenyan men, Charles Ngengi and Daniel Chege, became civil partners in a ceremony in London, England. The ceremony received widespread attention in Kenya, largely of great importance. The Chege family was harassed by the people who lived in his native village, Gathiru in Murang'a District.
False rumors of same-sex marriage coming at Mtwapa
In February 2010, a rumor spread in the coastal town of Mtwapa that two Kenyan men were getting married at a local hotel. The rumor spelled out "house-to-house hunting by anti-gay guys, street attacks targeting gay men, dismissing medical centers fighting AIDS, and widespread coverage of ultra-homophobic national media coverage". A local radio station, Kaya FM, picked up the story and started a series of gay programs, which included "talk show phones filled with homophobic discourse and incitement to violence". Baraka FM, Rahma FM, and finally national radio stations including Kiss and Classic FM also run the story. Five days before the wedding date does not exist, "many mufti and priests discuss the upcoming marriage during Friday prayers and ask the public to be alert to homosexuality and tell their congregation to demonstrate and remove homosexuals from the middle of Mtwapa and to ensure that no gay marriage takes place ".
The day before the absence of a marriage, a press conference condemning the marriage was held by Sheikh Ali Hussein, regional coordinator of the Council of Imams and the Kenyan Preacher, along with Bishop Lawrence Chai, regional representative of the National Council of Kenyan Churches. They warned that "God will punish the fastest growing city on the coastline.Night day, come the day, we will not let the marriage be done in this city tomorrow.We will stand firm to clean the gay that inhabit this city, every weekend from all over the country ".
They also warned owners of buildings in the city, who allegedly rent rooms only for homosexuals, to evict them within seven days or face their anger. Both criticize Mtwapa's clinic run by the Kenya Medical Research Institute, which has an AIDS program for counseling and treating men who have sex with men. "We ask the government to close it immediately or we will go down to its officials". A former Kenyan MP, Omar Masumbuko, speaks to a mass gathered outside the police station. He said that "homosexuality must be stopped and all means used to make it happen". He told the crowd, "they should not bother to bring the homosexuals they find to the police station but have to take care of the problem itself".
Traditional female marriage
Similar female marriages are conducted between Gikuyu, Nandi, Kamba, Kipsigis, and to a lesser extent in neighboring countries. About 5-10% of women in these countries are in such marriages. However, this is not seen as homosexual, but instead is a way for families without boys to defend their inheritance within the family. Couples are considered married, although the terms used for them are mother-in-law and daughter-in-law . The female "husband" ("mother-in-law") carries the name of the family and property, while the "wife" (daughter-in-law) gives birth to children, with the intention of having a son. A female "husband" may be widowed, but may also have a living male husband, but he will not be the father of the "wife" children, and the identity of the biological father, although often kept secret. Such marriages may be polygamy; in 2010 a woman was interviewed who had taken five wives.
Adoption of children
The Children Act, 2001 makes homosexuals and unmarried couples not eligible to adopt children. Even if the ineligibility is not specifically applicable, "the court may refuse to make an adoption order with respect to a person or persons if satisfied by any reason that would not be in the best interests of the child's welfare to do so."
Organization
Trans People
In connection with transgender, the Kenyan National Commission on Human Rights reported in April 2012,
[T] ransgender residents in Kenya suffer from stigma and discrimination and are unable to access sex reassignment therapy. A witness who testified in the Inquiry showed that he had undergone all the reassignment processes but Kenyatta National Hospital rejected the operation and offered no reason to decline. His efforts to appeal to the Kenyan Medical Practitioner and the Dentist Council have not been successful. Without being allowed to complete therapy, transgender people experience identity problems because they are biologically male or female, but they present themselves in either sex by dress, personality expression or through other socially defined roles. When arrested, the police often face difficulties regarding what cells (male or female) hold the transgender individual. While in the entertainment area, they are afraid of using a bathroom reserved for sex for fear of being caught by others and being accused or mistaken for using a bathroom for sexual offenses. Witnesses testify that sometimes they meet opposite sex couples demanding to have sexual intercourse with them. When they find that they are not female or male (depending on the sex of the sex partner), they shout and pull members of the public into the hotel room causing public disruption, stigma and shame to transgender people.
Trans people face stigma, discrimination and violence in Kenya. Discrimination is particularly prevalent, such as sexual violence. It is in the field of third sex acknowledgment by the government, access to justice, employment and other public life spheres.
Transgender Education and Advocacy (TEA) is "a human rights organization working to end human rights violations against transgender/transsexuals.Established in December 2008, TEA aims to change the transgender/transsexual public mentality through awareness raising campaigns, advocacy for reform laws and policies [,] and empower transgender people/transsexuals ".
Intersex people
Intersex people face stigma, discrimination and violence in Kenya, including mutilated and non-consensual medical interventions, and difficulty in obtaining documentation.
International pressure on Kenya to legalize same-sex sexual activity
Reports and recommendations under the International Covenant on Civil and Political Rights
Kenya became a party to the International Covenant on Civil and Political Rights on 1 May 1972. Under Article 40 of the Covenant, the United Nations Human Rights Committee (UNHRC) reviewed and made recommendations on March 24, 2005 on the last 18 years Kenya periodically reported. UNHRC urges Kenya to repeal Article 162, the Criminal Code, which criminalizes homosexuality. On August 19, 2010 in the third periodic report, Kenya formally responded to this recommendation:
Kenya should not decriminalize the same sex worker union at this stage because it is considered a taboo and a violation of the natural order contrary to cultural values ​​and morality. Indeed, the public gives a remarkable presentation to the Committee of Experts [on Constitutional Review] on the inclusion of same-sex rights under the new constitution. But it must be reiterated that the government does not discriminate anyone in the provision of services. No one is required under the law to declare their sexual orientation under any circumstances.
Kenya further discussed the issue in May 2012.
Kenya currently does not take steps to decriminalize the same trade unions. Public opinion strongly opposes the legalization of the same sex worker unions. The Constitution provides under article 45 (2) that a person has the right to marry the opposite sex, on the basis of free agreement of both parties. However, under article 27 (4) of the Constitution, the reasons prohibited for non-discrimination are not limited and therefore this allows the space for individuals to claim violations of their rights on the basis of their sexual orientation, in the event that they are discriminated against either directly or not directly by the State or other individuals.... Until then public opinion will change, the Government has tried to provide certain protection to lesbian, gay, bisexual and transgender people.
Universal Periodic Review
The United Nations Human Rights Committee (UNHRC) in May 2010 completed the Universal Periodic Review of the human rights situation in Kenya. During the review, Kenya stated:
With regard to same-sex relations, there is serious intolerance due to cultural beliefs and the overwhelming opposition to the decriminalization of such relationships, as observed during the constitutional review process. However, the Government does not support discrimination in terms of access to services.
The following recommendations were made for Kenya (countries that initiate recommendations are listed in brackets):
Take concrete steps to provide protection and equal treatment to lesbian, gay, bisexual and transgender (the Netherlands); decriminalize same-sex activities between approved adults (Czech Republic); revoke all legislative provisions that criminalize sexual activity between an approved adult (United States); decriminalizing homosexuality by invalidating the provisions of law currently punishing sexual intercourse between agreeing individuals of the same gender, and subscribing to the Declaration of the General Assembly in December 2008 on sexual orientation and human rights (France)
In response, Kenya indicated on May 6, 2010 that same-sex unions are culturally unacceptable in Kenya. More specifically, Geoffrey Kibara, Secretary, Justice and Constitutional Affairs, Department of Justice, National Cohesion and Constitutional Affairs, said on behalf of the Kenyan delegation:
We would like to state the following. First, there is serious intolerance to homosexual relations in this country because of cultural beliefs. In fact, this relationship is considered taboo in Kenya. The only way we see this accepted will be in the long term if there is a cultural change. But there is now a serious refusal to decriminalize same-sex relationships. In fact, during the constitution-making process, public views are accepted on this subject and they strongly oppose continuing the current criminalization of same-sex relationships. But we also want to state that as a government, we do not support discrimination in people of same-sex relationships. Discrimination in the event that access to services is clearly prohibited, especially with regard to access to HIV/AIDS prevention and support facilities. The law that the 2006 HIV and AIDS Prevention and Control Act expressly prohibits discrimination against same-sex relations or people on the basis of their sexual orientation.
Pressure from the US Department of State
The US State Department's 2011 human rights report found that "social discrimination based on sexual orientation expanded [in 2011] and resulted in the loss of employment and education • Violence against LGBT communities also occurred, particularly in rural areas and among refugees. non-government] reported that police intervened to stop attacks but were generally not sympathetic to individual or LGBT problems ".
On June 26, 2012, the United States Embassy in Nairobi held what is believed to be the first LGBT pride event in Kenya. A public affairs official at the embassy said, "The US government on its part has made it clear that human rights progress for LGBT people is at the center of our human rights policies worldwide and to realize our foreign policy objectives." Similar events are held at other US embassies around the world.
Summary table
See also
- Human rights in Kenya
- Kenya Human Rights Commission
- Rights of LGBT in Africa
- Denis Nzioka
References
External links
- UK government travel advice for Kenya: local law and custom
- Rainbow Kenya
Source of the article : Wikipedia
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