Gay rights are human rights: a case for the decriminalization of homosexuality in Kenya.

Abstract

At present, Kenya's Penal Code prescribes a punishment of up to five years imprisonment for the offense of 'gross indecency' between males; whether committed in public or private. It further criminalizes sexual relations between males which the Act refers to as indecent practice between males" and "carnal knowledge ... against the order of nature"; thus forming Kenya's anti-sodomy law clause. This is despite Kenya's ratification of international law instruments such as the ICCPR, ICESCR and the African Charter on Human and People's Rights; all which prohibit the decriminalization of homosexuality.This paper, taking a normative approach, looks at the provisions of the above instruments and the judicial decision arising from them and establishes that the said instruments do in fact prohibit their state parties from criminalizing homosexuality. It then uses South Africa as a comparative study from which Kenya can and should borrow from; with its inclusion of sexual orientation as a non-discriminatory ground in its constitution. It therefore establishes that there is in fact an international law and comparative law consensus against the decriminalization of homosexuality.It then looks at the legal and practical situation in Kenya and establishes that Kenya is in fact in violation of its international law obligations. In conclusion, it offers several recommendation key among them, the decriminalization of homosexuality in Kenya.