THE LGBTQ RIGHTS IN KENYA

RIGHTS OF THE LGBTQIA+ COMMUNITY IN KENYA
Introduction
Following a recent order from Education Cabinet Secretary Prof. George Magoha directing that students engaging in homosexuality be barred from attending boarding schools, Kenyans have come out at large to share their opinions on the same which have been mostly divided. While others have termed the move as discriminative such as the members of the LGBTQIA+ community who took it to the streets in protest of the same, others have been seen to endorse this move.
In the recent past, a majority of Heads of States in Africa have shown uniformity in their stance on the topic.
President Uhuru Kenyatta in 2018 said that Kenya and the United States share so many values for example, the common love for democracy, entrepreneurship, value for families. He also pointed out that there were things, however, that they did not share and that our culture and societies did not accept. He stated that It’s very difficult to be able to impose on people that which they themselves do not accept, this is why he repeatedly says that for Kenyans today, the issue of gay rights is really a ‘non-issue’. He continued to say that he intends to focus on other areas that are day to day living for the people of Kenya
This position has also seen to be supported by other Heads of State in Africa for example, President Kagame stating in an interview that “homosexuality hasn’t been our problem, and we don’t intend to make it a problem.” and President Edgar Lungu stating “We are saying no to homosexuality. Why should you say we are going to be civilized if we allow it? Are you saying we are very primitive now because we are frowning upon homosexuality? Even animals don’t do it, why should we be forced to do it because we want to be seen to be smart and civilized?”
With such a clear existence of difference in opinion relating the same, it is critical that we take an in-depth look into the current rights that members of the LGBTQIA+ community hold in Kenya.

The LGBTQIA+ Community
LGBTQIA+ is an initialism that means Lesbian, Gay, Bisexual, Transgender, Transsexual, 2/Two-Spirit, Queer, Questioning, Intersex, Asexual, Ally, + Pansexual, + Agender, + Gender Queer, + Bigender, + Gender Variant, + Pangender.
Over recent years there has been a surge in the campaign to secure the protection of their rights, freedoms and associations. Multiple countries around the world have supported such campaigns by lifting restrictions in their laws which, for a long time, have barred members of the community from openly associating and enjoying rights that non-LGBTQIA+ individuals enjoy.
The Kenyan government has however not been influenced by this trend and has taken a firm stand in support of the current laws in place which have posed a great challenge towards the members of the LGBTQ+ community.

Provisions relating to the LGBTQ+ community in Kenya
Originally, the Independence Constitution (1963) did not include any provisions relating specifically towards the rights of members of the LGBTQIA+ community or their rights to non-discrimination thereof. The same became a highly contested issue in the process of drafting the current Constitution (2010).
The 2010 Kenya Constitution established an elaborate Bill of Rights that provides all persons with constitutional protection from discrimination. It was reported that majority of Kenyans were of the view that rights affiliated to the LGBTQIA+ community should be specifically omitted from the Bill of Rights.
In addition, Article 27(1) of the Constitution of Kenya 2010 provides the rights to equality, freedom from discrimination and that every person is equal before the law and has the right to equal protection and benefit of the law.
It must be noted however, that Article 45 of the same Constitution only recognizes marriages between persons of the opposite sex. There is no legal recognition of same-sex marriages, adoption from same-sex parents, neither is there any comprehensive or specific equality legislation to guarantee protection from sexual orientation and gender identity discrimination, particularly in employment, health, housing and other social economic spheres.
The penal code criminalizes “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual activity, and specifies a maximum penalty of 14 years’ imprisonment
A male member of this community risks facing the following charges preferred against him if he engages in the following activities:
Sodomy, a felony, contrary to Section 162 of the Kenyan Penal Code which is punishable by 14 years imprisonment, if it can be proved that the perpetrator had carnal knowledge against the order of nature.
Gross indecency, a felony, (any sexual practices between males) contrary to Section 165 of the same statute which is punishable by 5 years’ imprisonment.
Lesbians, bisexual women and transgender persons are not recognized in the Kenyan Constitution.
However, a female member performing same sex activities is not expressly prohibited by law from performing the said actions but can be culpable of the offense of gross indecency.
Undoubtably, there exists a series of inconsistencies and/or gaps in Kenyan law relating to the rights of the LGBTQIA+ community.
Current trends in courts on LGBTQIA+ Laws
On 24 May 2019, in EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) the High Court of Kenya refused a petition to declare Sections 162 and 165 unconstitutional. The state does not recognize any relationships between persons of the same sex.
Transgender people have historically suffered discrimination, and there are no statutory provisions relating to transgender rights. However, there have also been a series of court rulings in favor of transgender rights, such as the outcome in EG v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR where members of the LGBTQIA+ community were granted the right to change the names appearing on legal documents to include words such as “gay” and “lesbian”. It is currently unclear as to whether these rulings constitute substantive law on the issue of changing legal gender.
Another example of a judgement made in the communities’ favor was in COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR, where police arrested two people and subjected them to forced anal examinations in 2015. The court ruled that carrying out these examinations on people charged with consensual homosexual conduct violated the prohibition on the torture and cruel, inhuman, and degrading treatment in accordance with the Constitution.
The community also made progress recently, when the court of appeal ruled in their favor that under Articles 27 and 36 of the Constitution of Kenya, every person has the right to freedom of association irrespective of their sexual orientation. For that reason, the National Gay and Lesbian Human Rights Commission was allowed to officially register as a national NGO.

Comparative Analysis
South Africa is generally considered to be the most gay-friendly African country in respect of the legal status of LGBT rights, although Cape Verde is also frequently regarded as being very socially accepting of LGBT rights.
In 2006, South Africa became the first and remains the only African country to legalize same-sex marriage, with a constitution (Section 9) that also protects against discrimination based on sexual orientation and which applies to government and private parties.
A bill was also introduced in 2018, to criminalize hate crimes and hate speech, and in 2020 South Africa’s President Cyril Ramaphosa passed into law the Civil Union Amendment Act, which prohibits marriage officers from refusing to conduct same-sex marriages. 
It has been argued that the legalizing of same-sex relationships is vital for equality, and improves the psychological, physical, and social well-being of LGBTQ+ communities.
Countries that are LGBTQ+ friendly also tend to see a boost in tourism, with LGBT travelers reportedly accounting for around 5-10% of global tourists.

Which school of jurisprudence should prevail?

Socrates’, Aristotles and Cicero’s natural law proposes that laws are a logical progression from morals. Therefore, actions that are considered to be morally wrong will be against the law. Nature is perfect and humans should behave and be guided by it in their distinction between what is good and what is evil. This theory is in support of the position that the Kenyan courts have maintained.

On the other hand, Roscoe Pound’s Sociological school of thought holds a different point of view in that: Law should be made or studied in accordance with what it does or its effect in the society. Law should be functional and liberal in such a sense that it should always be ready to accommodate the societal development/changes. This is in support of the law reforms that the LGBTQ+ society is seeking to achieve.
Which school of thought, therefore, are the Kenyan Courts supposed to base their judgements, to accommodate the rights of all Kenyan Citizens?
Conclusion
A wise man once said, ‘anything is possible under the sun.’ Truly this was noted when Colombia’s highest court gave the green light to gay marriage in a country known for its conservative and staunch Catholic nature. For this reason, Kenyan Citizens should be prepared for anything, even though the outcome may go against their school of thought.