A BBC podcast entitled Modern Love says that Kenya has 150,000 Grindr users (and growing). Grindr is a social network application where gay and bisexual people interact and hook up.
Kenya is among the countries in Africa leading with the number of active Grindr users.
These users are not a small group that we can wish away just like that. It sheds a light on an issue that often draws controversy in Kenya.
We have a group of people among us that is different. This group of people faces a lot of discrimination and stigma, which makes it difficult for them to thrive in society.
Gay and other queer groups face social stigma
This group of people comprises the Lesbian, Gay, Bisexual, Transgender, and Queer people (LGBTQs). The LGBTQ is an umbrella of a diverse group of people who are not heterosexual or cisgender.
Kenya is largely a society that is anti-LGBTQ. Sexually queer groups face untold stigma and suffering from society.
We hear horrific stories of corrective rape, which often target lesbian women. Corrective rape happens in the misguided idea that it will turn the victim into a ‘normal’ heterosexual person. It results from prevailing negative gender stereotypes in the country.
Those who endorse corrective rape falsely think that it will ‘cure the sexuality’ of the victim. In some cases, corrective rape happens with the consent of the family.
LGBTQ people also constantly face harassment and physical violence that results in actual bodily harm. In extreme cases, some LGBTQs have faced brutal murders because of their gender and/or sexual orientation.
LGBTQ people face eviction from their rented houses, work discrimination, and even discrimination by the law. Police officers routinely target gays, bisexual and closeted married men for extortion. They treat LQBTQ people with brutality in police cells.
The police extortion often involves money. They use the law to promote the blackmail, hostility, and violence against LGBTQs. Some vigilante groups are also infamous for the murder of LGBTQs.
Some government agencies have worked with gay people
In July 2015, President Uhuru Kenyatta said that gay rights ‘were a non-issue’ for Kenya. This occasioned the visit by the then USA President Barack Obama.
At the time, the US Supreme Court had passed a landmark ruling in favour of gay marriage in the US. This put the question about gay rights in Kenya and in Africa as a whole in the spotlight.
The president reiterated the same point in a 2018 interview with CNN. He said gay rights are not important to the country. He claimed that “it is not an issue of human rights”, but rather of “our own base as a culture.”
However, are gay rights really a non-issue for Kenyan government?
The Ministry of Health through former CS James Macharia acknowledged working with men who have sex with men (MSM). The Ministry provided them with healthcare services (preventive healthcare) such as condoms and Anti-Retroviral Drugs.
The ministry said that the existing punitive laws against MSM made access to health services difficult. They fear arrest and prosecution due to increased fear, stigma, discrimination and potential acts of violence.
These negative repercussions are as a result of the unfavourable Kenyan cultural environment for MSM.
As a result, the ministry called for wider sober debates among stakeholders on the whole issue of homosexuality. Men who have sex with men are more at risk of contracting HIV than any other population.
The Kenya National AIDS Strategic Plan commits to provide some services exclusive to the LGBT community. The National AIDS and STI Control Programme and the National Aids Control Council allow for LGBT advocates to inform the national HIV response.
How the Law discriminates gay people
Certain sections of the laws in Kenya discriminate against gay people in Kenya.
Sections 162 to 165 of the Penal Code criminalise what they refer to as “unnatural offences” and “indecent practices between males”. Unnatural offences tie to sodomy while indecent practices between males tie to sex between males.
The penalty for unnatural offences is 14 years or 7 years in case of an attempt to engage in them. The indecent practices between males carry a punishment of five years.
In essence, that means that men who have sex with men risk a jail term. The BBC podcast “Modern Love” says the police investigated 600 cases of homosexuality between 2010 and 2014 alone.
Therefore, the sexual activities that may be tied to homosexual males in Kenya are illegal and have been used to target them unfairly. The sexual activities criminalised under sections 162 to 165 of the Penal code, however, apply to anyone who engages in them, whether heterosexual, bisexual or homosexual (or of any other sexuality).
Homosexuality is not illegal in Kenya and no law criminalises it
The Constitution, however, does not recognize gay marriage. It defines marriage as between persons of the opposite sex (Article 45). Kenya would require a national referendum just to legalise gay marriage!
Criminalising sodomy, in essence, means that anal sex, oral sex, and bestiality are illegal in Kenya (whether committed by homosexual men or not). Bestiality, according to the Penal Code, carries a punishment of 14 years (which to me is ridiculous!)
Gay rights should not be a non-issue
Dating and hook-ups have become easier with the increased popularity of technology. The LGBTQ groups often find freedom online in social media and dating websites and apps.
The popularity of dating apps in Kenya has made LGBTQ relationships, especially those for gay and lesbians people, to thrive.
The experiences of LGBTQs are not entirely similar but they both face the same struggle towards recognition and equality.
The gay and lesbian community, which happens to be most vocal or recognized, often stands out above the other queer groups. Despite that, LGBTQ people qualify as minority groups, despite the Constitution not explicitly mentioning them.
Article 27 of the Constitution prohibits ay person or the State from discriminating anyone on grounds such as sex. Article 28 also recognizes the need to respect the universal dignity of every person.
The government should step up and protect the rights of gay people and other queer groups. They are Kenyan citizens in their own right. A citizen is the most important asset to the state.
In the end, people will judge the government by the way it treats its minority groups.
When a government starts treating people differently, that habit starts to spread.
Barack Obama
By refusing to support the rights of gay people and other queer groups, the government promotes intolerance over freedom. It also violates Article 27 of the Constitution of Kenya that bars the State from discriminating anyone on grounds such as sex.
The High Court already compelled the NGO regulatory authority in 2016 to register a lobby for the Lesbian, Gay, Bisexual, Transgender and Intersex people in the country. Even though the authority appealed the case, the Court of Appeal upheld the High Court ruling.
This shows that Kenya is not very far away from putting more weight on this issue. This extends to the other queer groups. Already, the case of Ms Audrey Mbugua is a good example for the transgender community.
The first step towards recognising the plight of gay people is doing away with Section 162–165 of the Penal Code. Second is treating all queer groups with the dignity and respect they deserve.
Regarding legalising gay marriage, South Africa has already set a precedent for Kenya.
