Giving rights to the outlawed among us: decriminalizing Kenya’s anti-sodomy laws

Abstract

Kenya’s Penal Code, imported from our colonial master, has, since it came into force, contained provisions prohibiting same-sex activity as an unnatural offence, punishable to up to 14 years’ imprisonment. The result of these anti-sodomy provisions is that they legitimise the prevalent homophobic attitude in Kenya, leaving LGBTIQ Kenyans vulnerable to various human rights violations; at the same time widening the gap between the LGBTIQ community and their access to justice. Through a qualitative research, this study reveals that there is something in the water. A shifting consensus in the international community towards supporting equal rights for LGBTIQ persons, reinforced by Kenya’s own current Constitution, which underscores these rights in the Bill of Rights, and incorporates international law into domestic law. This study argues that Kenya’s anti-sodomy laws are incompatible with these human rights standards, and in fact, incompatible with the ideals of universality of human rights, natural and social justice. Further to this, this study recommends that these laws be repealed, in order to conform to both constitutional and international demands.