A Kenyan court has awarded two gay men charged with “unnatural sex” for engaging in consensual sexual relations a total of Sh4 million ($31,000) in compensation.

This is after the Magistrates Court in the coastal city of Mombasa ruled the authorities violated the men’s rights in obtaining evidence.

During the arrest, the two men were forcefully subjected to genital examination and HIV tests against their constitutional rights to privacy and the rights of an arrested person, including being allowed to speak with a lawyer.

Section 162 of Kenya’s penal code criminalizes consensual same-sex relations with a 14-year jail term. Prosecutors wanted the court to find the two gay men, who were arrested in 2021, guilty of the offense.

In a ruling issued on Oct. 24, the court, while awarding each of the men Sh2 million ($15,600) in compensation, faulted prosecutors’ unlawful extraction of evidence.

The Center for Minority Rights and Strategic Litigation, a local LGBTQ+ rights organization, last year petitioned the court not to admit the evidence for having been obtained unlawfully, to stop the hearing, and for the accused to be compensated.   

In the petition, CMRSL cited infringement on the gay men’s right to human dignity: A ban on cruel, inhuman, or degrading treatment, the rights to privacy and a fair trial, rights of an arrested person, and violation of their freedom and security as the constitution and international law mandates.

“This provision (Section 162 of the penal code) has historically been used by the State to target and harass LGBTQ+ persons based on their gender identity and sexual orientation,” CMRSL Legal Manager Michael Kioko told the Washington Blade.

The High Court in 2019 declined to decriminalize sections of the penal code that ban homosexuality in response to queer rights organizations’ petition that argued the State cannot criminalize consensual same-sex sexual relations between adults. The constitutionality of laws that criminalize homosexuality is still contested in the appeals court, based on the argument they infringe on the rights to privacy and human dignity.

CMRSL termed the latest ruling “a crucial step toward dignity and human rights for all” while noting that the case was critical in its legal representation efforts to protect the fundamental rights of queer people in Kenya. 

The Oct. 24 decision affirms the Mombasa appeals court’s 2018 ruling that struck down the use of forced anal testing in homosexuality cases by terming it as unlawful. Kenya’s National Gay and Lesbian Human Rights Commission brought the case.

The appeals court verdict stemmed from a 2015 case where police in Mombasa obtained a court order to force two gay men to undergo anal examinations and HIV testing at a local clinic after authorities arrested them and charged them with unnatural sex.

NGLHRC, in challenging the court order, argued forced anal examinations are cruel, inhuman, degrading, and breached local and international medical ethics and human rights. 

The latest ruling exonerating the two gay men from prosecution is among numerous cases in which CMRSL has represented queer people in court to defend and protect LGBTQ+ rights in the country.

The case against a gay man in Mombasa charged with an unnatural act (a same-sex affair) and represented by CMRSL in court saw the matter dropped last September. The court last June acquitted transgender women in Lamu charged with committing gross indecent acts between males against provisions of the penal code.

CMRSL represented the trans women.

The group has deployed community paralegals and field monitors to monitor, document, and report queer rights violations. 

“They (field monitors) work closely with LGBTQ+ community paralegals to link survivors to justice by providing legal support and connecting those to pro bono lawyers and legal aid services,” Kioko said. “On average, our monitors handle around 10 cases each month, ensuring that violations are addressed and survivors receive the necessary legal pathways to seek justice.”  

CMRSL in partnership with several queer lobby groups, is also challenging the Kenya Films Classification Board in court for banning a movie titled “I Am Samuel” on the pretext it contained gay scenes that violate Kenyan law.

The Kenya Films Classification Board in 2018 also banned the “Rafiki” because it contains lesbian-specific content. Petitioners who challenged the ban in court argue the decision violates freedom of expression and other constitutional provisions.

The queer community in Kenya has condemned the government’s policy of discriminating against LGBTQ asylum seekers, and has launched a petition that challenges it.

The community, through an All Out petition drive, accuses Kenya’s Department of Refugee Services of putting queer asylum seekers at more risk of “persecution, violence, and exploitation” by not recognizing them as afflicted refugees.

The action is in response to Refugee Affairs Commissioner John Burugu’s comments in an interview last month where he said Kenya would not consider persecution based on sexual orientation or gender identity as a direct pass to asylum.

Burugu during a telephone interview said “we are not interested in anyone’s sexual identity,” and his department will not be convinced that persecution based on sexual orientation or gender identity is sufficient grounds for admission as an asylum seeker or refugee.

The Kenya 2021 Refugees Act, which governs Burugu’s department in the admission of refugees and asylum seekers in the country, does not explicitly recognize queer people among vulnerable individuals fleeing persecution. The law only recognizes refugees or asylum seekers as people who are persecuted based on race, religion, nationality, political opinion, or membership of a social group. 

Opposition MP George Kaluma’s proposed anti-homosexuality law also seeks the expulsion of LGBTQ refugees and asylum seekers from Kenya.   

“Decision-makers like the Department of Refugee Services and UNHCR Kenya are failing to uphold international human rights standards while the media and major NGOs remain silent,” reads the petition.

It notes the exclusion of LGBTQ refugees has left the majority of them vulnerable to more trauma and isolation.

They can wait up to a decade for the department to issue a decision on their asylum applications. It typically takes 12 months to process asylum applications in Kenya.

The petitioners note this delay has also increased violence, discrimination, and persecution of queer asylum seekers by the public and government authorities without any legal protection.   

“Historically, Kenya provided refuge for LGBTQ+ people fleeing danger, but the situation has worsened dramatically since 2017,” reads the petition. “From 2017, the government refused to process LGBTQ+ asylum claims, forcing over 400 people to flee to South Sudan in search of safety.”

This change is due to the U.N. Refugee Agency’s handing over the processing of asylum applications in Kenya to the government under the Department of Refugee Services in 2016. 

UNHCR has admitted to slowing the processing of queer asylum seekers’ applications since surrendering the duty to the Kenyan government. It has asked the Department of Refugee Services to resolve the problem.

More than 200 people have signed the petition, which organizers hope to present to Kenyan and international human rights bodies that include UNHCR Kenya, the Department of Refugee Service, the Kenya Human Rights Commission, the National Gay and Lesbian Human Rights Commission, and the Refugee Consortium of Kenya. Other groups include the UNHCR High Commissioner in Geneva, U.N. Secretary-General António Guterres, Amnesty International, the International Organization for Migration, and the Church World Service.     

The petitioners want the bodies to “take immediate action” to protect LGBTQ asylum seekers in Kenya against discrimination and exclusion, noting it not only violates queer peoples’ basic human rights, but disregards Nairobi’s obligations under international law, including the 1951 Refugee Convention.  

“As key decision-makers, you have the power to reverse this exclusion and ensure that the LGBTQ+ asylum seekers are protected from harm and granted the rights they are due,” reads the petition.

There are more than an estimated 1,000 LGBTQ refugees in Kenya. Many queer people — especially from Uganda — continue to flee to Kenya in the wake of the enactment of the country’s Anti-Homosexuality Act in 2023.

The petitioners want queer asylum seekers recognized for admission and their applications expedited like other refugees and their concerns over discrimination and violence addressed.

“The Department of Refugee Services should officially retract the discriminatory statement made by the DRS commissioner, which excluded LGBTQ+ individuals from protection under the refugee mandate,” reads the petition.

The petitioners also want queer people represented in the Global Refugee Forum and the Refugee Working Groups to have their voices heard and needs addressed in global decision-making processes.

The Center for Minority Rights and Strategic Litigation, a Kenyan LGBTQ rights group, described Burugu’s sentiments as “deeply concerning, regrettable, and against the law.”   

CMRSL Legal Manager Michael Kioko told the Washington Blade the organization has received many complaints from queer refugees and asylum seekers about homophobic discrimination and other violations in the country. The Department of Refugee Services and UNHCR Kenya, he said, took no action to address them.

“The DRS commissioner is obligated under Section 21 of the Refugees Act to ensure measures are taken to protect asylum seekers who have been traumatized or require special protection. This includes LGBTIQ+ refugees in Kenya,” Kioko said.

He noted this directive is also in line with the 1951 Geneva Convention on the Status of Refugees to which Kenya is a signatory, and applicable under Article 2(6) of the constitution.

“It is imperative that the Department of Refugee Services adheres to its obligations under the Refugees Act and the Constitution to protect LGBTIQ+ refugees,” Kioko said. “Their safety must be prioritized, especially in light of the increasing violence and discrimination that LGBTIQ+ persons in Kenya are facing.”

Kioko added Kenyan courts have ruled queer people are members of a social group the Refugees Act recognizes for admission as refugees in cases of persecution, and LGBTQ asylum seekers cannot be excluded.