BY SAM ALFAN.
The High Court is on Friday expected to make a landmark decision as the community of Sexual Orientation Gender Identity and Expression (SOGIE) seeks to quash some laws that make it illegal for consensual same sex.
And the bench of three judges make the decision, Kenya National Commission on Human Rights (KNCHR) has asked the police to provide security at Milimani Law courts and its precincts.
In the letter addressed to Nairobi County Police Commander, the petitioners want the police to enhance security within the court and its precincts and countrywide. There has been cases of attacks against members of this community whenever such pronouncements are made.
A bench comprising of Justices Roselyne Aburili, Chacha Mwita heard arguments from rival parties and their submissions last year.
If successful, the petition has the potential to change the tide for Sexual Orientation, Gender Identity and Expression in Kenya. South Africa and Angola have set a precedent in Africa by decriminalizing gay sex.
In the petition, Eric Gitari, the director of National Gay and Lesbian Rights Commission wants the High court to decriminalize Sections 162 and 165 of the Penal Code.
The petitioners contend that the section 162 of the constitution which needs to repeal has denied SOGIE people “the rights to privacy, dignity, health, equality and non-discrimination and freedom and security of the persons.”
Section 162 reads: “Any person who has carnal knowledge … against the order of nature; or has carnal knowledge of an animal; or permits a male to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for 14 years.”
Section 165 says a man who commits any act of indecency with another man, or procures a man to commit indecency with him, or attempts to procure the commission of any such act with himself or with another male may be jailed for five years.
The petition was opposed by the government and faith-based organizations. The AG through lawyer Jeniffer Gitiri, argued that declaring the said sections unconstitutional would tantamount to allowing unnatural offences, sex with 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.
The gay and Lesbian Coalition of Kenya (GALCK), the National gay and Lesbian Human Rights Commission (NGLHRC) and the Nyanza Rift Valley & Western Kenya Network (NYARWEK) are also petitioners in the case.
They urged the court to declare as unconstitutional the sections that are in violation of rights guaranteed to all Kenyans irrespective of their sexual orientation.
The gay and lesbians argued that the existence of these laws within the penal code validate stigma, discrimination and violence towards individuals who do not conform to society ‘s expectations on gender identity, gender expression or sexual orientation.
The five petitioners together with Gay and lesbian coalition of Kenya, Nyanza western and rift valley network and Kenya human rights commission said they filed the matter in the public interests and to secure and protect the rights and freedom of the persons engaging in consensual sexual, minority sexual orientation and gender identities who have been subjected to severe violations of their fundamental rights and freedom.
