The joint Litigation Petitions challenging the constitutionality of sections 162(a) & (c) and 165 of The Kenya 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 filed petitions 150 & 234 of 2016 respectively, at the high court.
These petitions challenge the constitutionality of sections 162 a), c) and 165 of the Penal Code of Kenya. The Petitions ask the court to declare these sections of the law unconstitutional and in violation of rights guaranteed to all Kenyans in Chapter Four of the 2010 Constitution of Kenya. These rights include: “the right to privacy, dignity, health, equality and non-discrimination and freedom and security of the person as enshrined in the Constitution.
The Petition also argues that sections 162 (a), (c) and 165 of the Penal Code continue to validates discrimination and violence towards individuals who do not conform to society’s expectations of gender identity, expression or sexual orientation. These individuals include lesbian, gay, bisexual, transgender and queer (LGBTQ). The use of these laws to discriminate against a subset of Kenyans goes against the supreme law of Kenya—the constitution.
This case is not about non-consensual sex, sexual conduct with minors or sexual conduct in public. The Sexual Offenses Act and the Penal Code provide for such acts. Article 45 (2) of the Constitution recognizes marriage between a man and a woman and as such this is not about legalizing gay marriage. Further, this case is not about conversation of children to homosexuality or recruitment.
This case is about consensual sexual conduct between adults held in private without external intrusion; the right to dignity providing for humane treatment and personhood; the right to health as the constitution guarantees the highest attainable standards of health accorded to every citizen; the right to equality and non-discrimination and freedom and security of the person.