Is democracy on retreat? Kenya after the #Repeal162 ruling

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Judges, Chacha Mwita, Roselyn Aburili and John Mativo at the #Repeal162 case ruling.

Kenya's High Court, on Friday 24 May 2019, delivered a ruling that reiterates the country’s position on the criminalization of homosexuality. Judges Roselyn Aburili, Chacha Mwita and John Mativo upheld the 14-year sentence for consensual sexual conduct between two adults of the same sex as stipulated in Sections 162 (a) and (c) and 165 of Kenya’s Penal Code.

In 2016, the National Gay and Lesbian Human Rights Commission (NGLHRC), the Gay and Lesbian Coalition of Kenya (GALCK), and the Nyanza, Rift Valley and Western Kenya Network (NYARWEK), together with partners, had filed Petitions 150 & 234, seeking that the Kenyan High Court would declare Sections 162 (a) and (c) and 165 unconstitutional.

The petitioners through their counsel criticized the impugned provisions of sections 162 (a) (c) and 165 of the Penal Code on grounds of vagueness, ambiguity and uncertainty and submitted that the provisions contravene the Constitution of Kenya. The petitioners also argued that the provisions are so vague that they violate the right to a fair hearing under Article 50 of the Constitution. Further, they argued that section 162 does not define the phrases, “unnatural offences” and “against the order of nature.”

The ruling provided that the above phrases have been clearly defined in law dictionaries and in related judicial pronouncements. The judgement further mentioned that lack of definitions in the statute by itself does not render the impugned provisions vague, ambiguous or uncertain. They unanimously declined the call to declare the said provisions unconstitutional on grounds of vagueness, uncertainty, ambiguity and over broadness.

The petitions further sought to declare the above mentioned provisions of the Penal Code discriminatory and in contravention of Articles 27, 28, 29, 31, 32 and 43 of the Constitution. The judges unanimously stated there was not enough evidence on discrimination against members of the LGBTQ community in Kenya. The judges also argued that “Decriminalizing the impugned provisions would indirectly open the door for unions among persons of the same sex. If this were to be allowed, it would be in direct conflict with article 45 sub article 2 of the constitution. We take this view fully aware of numerous decisions from different foreign jurisdictions, which we have referred to that have decriminalized provisions similar to ours. However persuasive these decisions may be, they are not binding on this court,” (Justice Aburili).

The judgement concluded that there was no satisfactory evidentiary proof on the unconstitutionality of sections 162 and 165 of the Penal Code. Accordingly, the consolidated petitions were dismissed for lack of merit.

The promulgation of the Constitution in 2010 saw Kenyans celebrate a new era that was expected to expand democracy and uphold the bill of rights as provided for internationally, ratified by the Kenyan Government and adopted by the people of Kenya through the Constitution. The judgement on ‘Repeal 162’ can arguably be said to be evidence of a regression of democracy for Kenyans. At a time when the world is embracing development as expansion of freedom and capabilities for all human beings, the focus for states should be in ensuring justice and equality for all.

Download the Judgement