, NAIROBI, Kenya, May 25 – A three-judge bench of the High Court on Friday upheld sections of the Penal Code criminalizing same-sex relations, saying the impugned provisions were consistent with Article 45 of the Constitution.
The petition was filed in 2016 by Eric Gitari but the court had enjoined other parties, notably Non-Governmental Organisations promoting the rights of lesbian, gay, bisexual, and transgender persons.
Justices Roselyne Aburili, Chacha Mwita and John Mativo noted that invalidation of Sections 162 and 165 of the Penal Code would violate the constitutional provision that defines marriage as a union between consenting adults of the opposite sex.
“Article 45 (2) of the Constitution only recognises marriage between adult persons of the opposite sex. In our view decriminalizing same-sex sex on grounds that it is consensual and is done in private between adults would contradict the express provision of Article 45 (2),” Lady Justice Aburili outlined.
While delivering the much-awaited ruling, which was postponed in February due to logistical and scheduling challenges, the judges noted that nullifying Sections 162 and 165 of the Penal Code would open a floodgate for same-sex unions.
The bench said a majority of Kenyans – who backed the express constitutional provision defining marriage as a union between persons of the opposite sex and enjoined the State to protect the family – would be undesirous of changes to the Penal Code that would circumvent Article 45.
“The petitioners’ argument that they are not seeking to be allowed to enter into same-sex marriage is in our view immaterial given that if allowed it would lead to same-sex persons living together as couples,” Lady Justice Aburili stated.
The bench cited constitutional conformity arguing that jurisdictions that have decriminalized same-sex relations lacked constitutional provisions disallowing gay and lesbian relations.
They observed that jurisdictions cited as having appealed similar penal code provisions outlawing same-sex unions had unique constitutions which do not expressly define marriage or sex relations.
“We hasten to add that we’ve not come across any country that has provisions the equivalent of Article 45 (2) of our Kenya Constitution and has decriminalized similar provisions which are impugned,” the judged pointed out.
“We’re aware that all law in existence as at August 27, 2010 (the date of enactment of the new constitution) must be construed with alterations, adaptations, qualifications and exceptions necessary so as to conform to the Constitution,” they added.
The court declined an invitation to alienate itself from public opinion while considering the petition stating that the public had unequivocally pronounced itself on the matter as evidently provided for under Article 45.
In the opinion of the bench, the drafters of the Article took into account the aspirations and values of the Kenyan society and embedded them in law to safeguard them.
“While courts may not be dictated by public opinion, they’d still be loath to fly in the face of such opinion. In our view where the will of the people is expressed in the Constitution, it represents societal values which must always be a factor in considering constitutional validity of a particular enactment where such legislation seek to regulate conduct – private or public – and in our case those views were clearly expressed in Article 45 (2) of the Constitution,” the bench decided.
The court also dismissed an assertion by the applicants that Sections 162 and 165 of the Penal Code offend privacy rights of lesbian, gay, bisexual, and transgender persons.
The petitioners had argued that the said provisions violated Article 28, which guarantees every person inherent dignity and the right to be respected and protected.
The petitioners had also contended that the provisions of the Penal Code violated Article 31 on the right to privacy which includes the right not to have “information relating to their family or private affairs unnecessarily required or revealed.”
“Looking at the impugned provisions of the Penal Code vis-a-vis Article 45 (2), we’re satisfied that the impugned provisions do not offend the right to dignity and privacy espoused in Articles 28 and 31. Our view is informed by the fact that we cannot read Articles 28 and 31 in isolation from Article 45 (2),” the bench determined.
Section 162 (c) of the Penal Code sets out an imprisonment term of 14 years for any persons who permits a male person to have carnal knowledge of him or her against the order of nature.