Права ЛГБТ в Кении: Законодательные и социальные вызовы

none

Lesbian, gay, bisexual, and transgender (LGBT) people in Kenya face significant challenges not experienced by non LGBT residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years' imprisonment, and any sexual practices (termed "gross indecency") are a felony under section 165 of the same statute, punishable by 5 years' imprisonment. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not recognise any relationships between persons of the same sex; same sex marriage is banned under the Kenyan Constitution since 2010. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only. Transgender people have historically suffered discrimination, and there are no statutory provisions relating to transgender rights. However, there have been a series of court rulings in favour of transgender rights, such as the right to change the names appearing on legal documents. It is currently unclear as to whether these rulings constitute substantive law on the issue of changing legal gender. Kenyan society is highly conservative, and a large majority of people hold negative views of LGBT people. In 2023, Pew Research Center estimated that over 90% of Kenyans oppose same sex marriage. Nevertheless, public support has slowly been growing and various organisations are working to protect and improve LGBT rights.

The Constitution of Kenya, which took effect 27 August 2010, does not expressly protect the rights of LGBTI persons because, according to the experts who drafted the constitution, a majority of Kenyans would have rejected the constitution in the referendum to adopt it. Nevertheless, few argue that Kenya's statutes discriminating against LGBTI persons are unconstitutional and void because of the constitution's broad protection of civil and human rights. Peter Anaminyi, the national director of Feba Radio Kenya, predicted in June 2011 that within 18 months there would be a challenge to the constitutionality of the Kenya Penal Code.

Article 2 of the Constitution of Kenya provides, in paragraph (5) that "the general rules of international law shall form part of the law of Kenya" and, in paragraph (6), that "[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution". In paragraph (4), the constitution states, "[a]ny law, including customary law, that is inconsistent with [the] Constitution is void to the extent of the inconsistency, and any act or omission in contravention of [the] Constitution is invalid." A subsequent section of this article lists Kenya's obligations under international law and treaties concerning LGBTI rights. To the extent that any Kenyan law violates Kenya's voluntary or involuntary obligations under international law, the law is arguably void under Article 2.

Article 10(2)(b) of the Constitution of Kenya provides that, "The national values and principles of governance include human dignity, equity, social justice, inclusiveness, equality, human rights, non discrimination and protection of the marginalised " Concerning this provision, "Right there, there is a firm basis [for] one to argue against the violation of their [LGBTI persons'] dignity on the basis of their gender or sexual orientation. There is firm ground to contest for inclusion, non discrimination and equality too".

Article 24(1) of the Constitution of Kenya provides that, "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors "

Copying the Anti Homosexuality Act of Uganda, a carbon copy bill called the Family Protection Act has been introduced. This law allows "aggravated homosexuality" to be punished with death and would ban all promotion of LGBT activity. The bill was ruled against on 12th September 2023, according to the Gay and Lesbian Coalition of Kenya website.

Article 45(2) of the Constitution of Kenya specifically authorises heterosexual marriage but makes no reference to same sex marriage; "Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties". In October 2009, two Kenyan men, Charles Ngengi and Daniel Chege, became civil partners at a ceremony in London, United Kingdom. The ceremony received widespread attention in Kenya, most of it critical. Chege's relatives were harassed severely by people living in his home village of Gathiru in Murang'a District.

In February 2010, a rumor spread in the coastal town of Mtwapa that two Kenyan men were going to marry in a local hotel. The rumor unleashed a "house to house witch hunt by anti gay vigilantes, street attacks targeting gay men, the sacking of an AIDS fighting medical center, and a widening wave of ultra homophobic national media coverage". A local radio station, Kaya FM, picked up the story and started a series of programs on gays, which "included phone in talk shows filled with homophobic discourse and incitements to violence".

The Children Act, 2001 makes homosexuals and unmarried couples ineligible to adopt children. Even if that ineligibility does not apply specifically, "a court may refuse to make an adoption order in respect of any person or persons if it is satisfied for any reason that it would not be in the best interests of the welfare of the child to do so".

With respect to transgender persons, there is no legal means to change your gender in Kenya. The governmental Kenya National Commission on Human Rights reported in April 2012 that the transgender community face much discrimination in the country:

[T]ransgender people in Kenya suffer stigma and discrimination and are not able to access gender re assignment therapy. A witness who testified at the Inquiry indicated that she had undergone all the processes of re assignment but Kenyatta National Hospital declined the surgery and did not offer any reasons for declining. Her attempts to appeal to the Kenya Medical Practitioners and Dentist's Board have not been successful. Without being allowed to complete the therapy, transgender people suffer identity problems since they are biologically either male or female, yet they present themselves in one of the gender by mode of dressing, personality expressions or through other socially defined roles. When arrested, police often face difficulties regarding what cells (male or female) to detain transgender individuals. When at entertainment areas, they are afraid of using bathrooms designated for either sex for fear of being caught by other people and accused or mistaken to be using bathrooms for sexual crimes. The witness testified that sometimes they meet opposite sex partners who demand to have sexual relationships with them. When they discover that they are not female or male (depending on the gender of the sex partner), they scream and attract members of public to the hotel room causing public nuisance, stigma and embarrassment to the transgender person. Transgender people face stigma, discrimination, and violence in Kenya. Discrimination in particular is prevalent, as is sexual violence. This is in the areas of recognition of a third sex by the government, access to justice, employment and other spheres of public life. Transgender Education and Advocacy (TEA) is "a human rights organisation working towards ending human rights violations against transgender / transsexual people. Established in December 2008, the TEA aims to change the public mentality towards transgender / transsexual people through awareness raising campaigns, advocating for legal and policy reforms[,] and empowering transgender / transsexual people".

Intersex people face stigma, discrimination, and violence in Kenya, including mutilation and non consensual medical interventions, and difficulties in obtaining documentation.

The U. S. Department of State's 2011 human rights report found that "societal discrimination based on sexual orientation was widespread [in 2011] and resulted in loss of employment and educational opportunities. Violence against the LGBT community also occurred, particularly in rural areas and among refugees. [Nongovernmental organisation] groups reported that police intervened to stop attacks but were not generally sympathetic to LGBT individuals or concerns". On 26 June 2012, the United States embassy in Nairobi held what was believed to be the first ever LGBT pride event in Kenya. A public affairs officer at the embassy said, "The U. S. government for its part has made it clear that the advancement of human rights for LGBT people is central to our human rights policies around the world and to the realisation of our foreign policy goals". Similar events were held at other U. S. embassies around the world.

LGBT rights organisations in Kenya include the Gay and Lesbian Coalition of Kenya, Gay Kenya Trust, National Gay & Lesbian Human Rights Commission, and the East Africa Trans Health & Advocacy Network. In March 2019, 3 out of 5 judges in the Court of Appeal ruled that the government could not use colonial era laws criminalising gay sexual activity to block the National Gay Lesbian Human Rights Commission (NGLHRC) from being registered as a non profit organization, and dismissed the appeal after the government's Non Governmental Organisations Coordination Board rejecting its application for registration as a charity on the basis that it was for gay and lesbian people. The government appealed the judgment to the Supreme Court, which in a 3 2 decision dismissed the appeal. The body of murdered LGBTQ activist and fashion business owner, Edwin Chiloba was found in Uasin Gishu on 3 January 2023.

Same sex sexual activity legal Penalty: Up to 14 to 21 years in prison with fines. A bill that would ban "aggravated homosexuality" with death was attempted in 2023. Equal age of consent Anti discrimination laws in employment only Limited protection under the Children Act 2022. Anti discrimination laws in the provision of goods and services Anti discrimination laws in all other areas (Incl. indirect discrimination, hate speech) Same sex marriages (Constitutional ban since 2010) Recognition of same sex couples Stepchild adoption by same sex couples Joint adoption by same sex couples LGBT people allowed to serve openly in the military Right to change legal gender Access to IVF for lesbians Conversion therapy made illegal LGBT propaganda laws removed allowing LGBT freedom of expression Commercial surrogacy for gay male couples MSMs allowed to donate blood