The Heinrich Boell Foundation (East and Horn of Africa office) congratulates its partner the National Gay and Lesbian Human Rights Commission (NGLHRC) for its landmark legal victory. In a significant win for human rights in Kenya, the Court of Appeal has ruled that the use of forced anal examinations by the state is unlawful.
On Thursday 22nd March 2018, a three judge bench handed down a ruling in a case appealing the state’s cruel and degrading treatment of two Kenyan men while under arrest in 2015. The men were arrested in Kwale County, on assertion that they were gay. They were subjected to forced anal examinations and HIV testing under a magistrate’s order to determine if they had engaged in consensual sexual acts in private. NGLHRC, which provides free legal assistance to LGBT individuals in Kenya, reported increasing use of threats of forced anal examinations by police officers in the last two years against men suspected of being gay.
Head of Legal Affairs at NGLHRC, Njeri Gateru, said:
“We are thankful that the Appeal Court has put Kenyan citizens’ rights first. With this ruling, the judges are saying that we all deserve to be treated with dignity and afforded our basic rights, as enshrined in the Kenyan Constitution… We are emboldened to see our Constitution at work, ensuring that all Kenyans have the right to dignity.”
The violating examinations, which include being made to lie with legs up in a humiliating position and having instruments forced into your rectum, are widely accepted to have no medical merit. In September 2017, the Kenya Medical Association (KMA), which is the leading professional body working to improve the welfare of doctors and advocating for quality healthcare for all Kenyans, condemned the forced examinations, advising that it was against the Code of Ethics and Professional Conduct. Kenya is one of only eight countries in the world where forced anal examinations are still being practiced to date. Human Rights Watch, in this report, compiled evidence on forced anal testing in eight countries including Kenya.
In a separate High Court case, NGLHRC and other rights groups are seeking a repeal of sections of the Penal Code Act under which the two men were arrested and charged. Section 162 of Kenya's penal code criminalises "carnal knowledge against the order of nature", making life for LGBTQI+ people not only difficult, but dangerous. The next scheduled court date for that case is April 26th 2018.