AG opposes making homosexuality legal in Kenya


AG opposes making homosexuality legal in Kenya
Rainbow gay pride flag, Photo/Courtesy

In Summary

  • The Attorney General has asked the court to dismiss a case seeking to decriminalise a section of the Penal Code that makes it illegal to have consensual same sex.
  • In the petition, Eric Gitari, the director of the National Gay and Lesbian Rights Commission, filed a case seeking to decriminalise Sections 162 and 165 of the Penal Code.
  • The court was told that in enacting the Constitution of Kenya 2010, marriage is between a man and a woman thus anything to the contrary is in fact a violation of the Constitution.

The Attorney General is opposed to legalising homosexuality in Kenya.

He has asked the court to dismiss a case seeking to decriminalise a section of the Penal Code that makes it illegal to have consensual same sex.

Through lawyer Jeniffer Gitiri, the office strongly opposed the petition saying that declaring sections 162 and 165 of the penal code as unconstitutional would tantamount to allowing unnatural offences between people of the same gender who may have a legitimate expectation to enter into a marriage which is contrary of Article 45 of the constitution.

Ms. Gitiri said that the petitioners must show the court how declaring the impugned provisions as unconstitutional promotes the national values and principles of governance.

She argued that allowing unnatural acts on basis that it is one in private will be tearing the social fabric of the Kenyan society adding that the privacy is not an excuse to commit crime by anyone.

She argued that a party seeking an interpretation to declare the sections of the penal code or any other section bears a burden of showing there is sufficient public participation, approval and social justice in such a declaration.

“If a marriage is between a man and a woman, why then should unnatural offenses between people of the same gender be allowed? This is because there is a legitimate expectation that such unions would eventually end up in marriages that would ultimately be unconstitutional,” added Gitiri.

The court was told that in enacting the Constitution of Kenya 2010, marriage is between a man and a woman thus anything to the contrary is in fact a violation of the Constitution.

Meanwhile Senator Irungu Kangata has been enjoined as interested party in the case. Lawyer Harrison Kinyanjui made an application for Kang’ata to be enjoined saying that he will bring the cultural dimension using the Kikuyu tribe which depicts homosexuality as a taboo.

In the petition, Eric Gitari, the director of the National Gay and Lesbian Rights Commission, filed a case seeking to decriminalise Sections 162 and 165 of the Penal Code.

He argues that the sections are discriminatory and violate various provisions of the Constitution. These include right to equality, freedom from discrimination, human dignity, freedom and security of the person and right to privacy.

Section 162 states that “Any person who – (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or(c) permits a male person to have

He argues that the law criminalising relevant conduct such as unnatural and grossly indecent are degrading.

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