The High court has declined to repeal section 162 of the penal code.Judges Chacha Mwita, Roselyne Aburili and John Mativo made a unanimous decision to decline.
“None of the petitioners tendered evidence to prove denial of the rights to health on the basis of their orientation. Only general statements which do not meet the burden of proof.
“On right to non-discrimination, the Constitution only prohibits unfair discrimination. In this case, the language of section 162 targets “Any person” and not a particular group with a particular sexual orientation, as claimed by the petitions,” the judges ruled.
“We therefore decline to issue the orders as sought by the petitioners. The phrase in Section 162 (a) and (c) of Kenya’s Constitution] is clear,” said the judges
The National gay and lesbian rights commission through Eric Gitari had filed a suit to declare section 162 and 165 of the penal code unconstitutional.
The two sections, Gitari said that contravened the right to privacy for those affected. The gay and Lesbian Coalition of Kenya (GALCK), the National gay and Lesbian Human Rights Commission (NGLHRC) and the Nyanza Rift Valley and Western Kenya Network (NYARWEK) are enjoined in the suit.
Section 162 prohibits a person who has carnal knowledge against the order of nature; or has carnal knowledge of an animal.
“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.”