Section 165 of the penal code states that any male person who commits any act of gross indecency with another male person, or attempts to procure any such act whether in public or private, is guilty of a felony and is liable to imprisonment for five years/FILE
NAIROBI, Kenya, Jan 19 – An NGO which is advocating for consensual same sex will call an expert witness to illustrate why sections of the penal code should be nullified.
Senior Cousel Paul Muite on Thursday told a bench of three judges that the petitioner will call a psychiatrist to explain sexual orientation and why the government should not regulate matters intimacy.
Justices Chacha Mwita, Rosslyn Aburili and John Mativo heard that the witness will table reports to demonstrate biological and social conditions which explain one’s sexual orientation.
The NGO’s visionary, Eric Gitari is questioning the legality of Sections 162 and 165 of the Penal Code which he claims are discriminatory on grounds that they contravene the right to equality; human dignity, freedom and security of the person and right to privacy.
Section 165 of the Penal Code states that any male person who commits any act of gross indecency with another male person, or attempts to procure any such act whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
Gitari has however clarified that the petition is not after the legalisation of same sex marriage and will not if successful, have the effect of mandating or requiring Kenya to recognise same sex marriage.
Gitari’s petition will be heard together with a similar one lodged by John Mathenge and four others who are seeking the same prayers.
Gitari, Director National Gay and Lesbian Rights Commission in Kenya, argues that the law criminalising consensual same sex relations as unnatural and grossly indecent are degrading.
The Attorney General who has been named as a respondent in the case has until February 22, when hearing resumes, to respond to the issues raised.
The Katiba Institute has applied to be enjoined as an interested party.
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