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Kenya Upholds Laws that Criminalize Same-Sex Relations

In arguments read in court, the three judges stated there was not enough evidence of discrimination against members of the LGBTQ community

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An LGBT activist delivers a statement after a ruling by Kenya's high court to uphold a law banning gay sex, at the Milimani high Court in Nairobi, Kenya, May 24, 2019. VOA

Kenya’s high court on Friday upheld laws that criminalize gay sex. The much-anticipated ruling Friday was decided by a three-judge bench on Kenya’s High court in Nairobi.

The laws, sections 162(a) and (c) and 165 of Kenya’s Penal Code, criminalize consensual sexual conduct between two adults of the same sex, an act that as of Friday’s ruling remains punishable by up to 14 years in prison.

Justices Roselyn Aburili, Chacha Mwita and John Mativo issued the ruling.

In arguments read in court, the three judges stated there was not enough evidence of discrimination against members of the LGBTQ community.

The judges also argued that decriminalization would open the door for same-sex marriage and said there was no scientific evidence that pointed to LGBTQ persons being born as they are.

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LGBT activists react after a ruling by Kenya’s high court to uphold a law banning gay sex, outside the Milimani high Court in Nairobi, Kenya, May 24, 2019. VOA

Justice Aburili commented for the court panel. “Decriminalizing the impugned provisions would indirectly open the door for unions among persons of the same sex. If this were to be allowed, it would be in direct conflict with article 45 sub article 2 of the constitution. We take this view fully aware of numerous decisions from different foreign jurisdictions, which we have referred to that have decriminalized provisions similar to ours, however persuasive this decisions may be, they are not binding on this court,” Aburili said.

Friday’s ruling is a result of a petition that dates from 2015, when the National Gay and Lesbian Human Rights Commission (NGLHRC), Gay and Lesbian Coalition of Kenya (GALCK), and the Nyanza Rift Valley and Western Kenya Network (NYARWEK), all LGBT rights organizations, filed petitions with Kenya’s high court asking it to declare Sections 162 (a) and (c) and 165 unconstitutional.

Court hearings began in February 2018. In a series of proceedings through 2018, the petitioners argued the laws, as stipulated in the penal codes, violated the right to privacy, freedom of expression, the right to health, human dignity and the right to freedom from non-discrimination.

The petitioners behind the historic case wanted the high court to declare unconstitutional the sections of the penal code that discriminated against members of the LGBTQ community. Eric Gitari was one of the petitioners who was present during the ruling.

“It sends a very chilling message, not just to LGBT people in Kenya but LGBT people across the African continent that there is preference, as you heard the judges say, certain cultures, which is the heterosexual culture and protection of the family. When judges have to weigh the protection of human rights of LGBT persons, they will give preference to majoritarian views and majoritarian interest of protecting families — that’s what we have been told and so we will remain criminals,” Gitari said. After Friday’s ruling, members of Kenya’s LGBT community were clearly distraught.

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Anti-gay rights protesters hold placards after a ruling by Kenya’s high court to upheld a law banning gay sex, outside the Milimani high Court in Nairobi, Kenya, May 24, 2019. VOA

Outside the courts, members of various Christian churches congregated, singing songs of jubilation.

One of them is Pastor Katy Kageni of the Sozo Church.

“So it’s not a sin worse than the other sin, but the problem is what it does to the family,” Kageni said. “Our fight is for the family unit. I am a mother of four, I came to this court, I told God, ‘don’t let us get into a position where I have to explain to my children why a man is holding a man.’ If he does it in the bedroom, that’s up to them, and between them and God — but not in public.

For the LGBT community, decriminalization of gay sex would provide guaranteed freedoms that they once only dreamed of, Gitari said.

He said because of today’s ruling, many of Kenya’s LGBT community would remain in the closet, and some will be too ashamed to access basic services, like health care.

ALSO READ: First Same-Sex Couple Ties Knot in Taiwan

Countries such as South Africa, Angola, Mozambique, Sao Tome, and Principe and Cape Verde have struck down anti-homosexuality laws from their constitutions through court rulings or changes in their laws.

Twenty-eight of 49 countries in sub-Saharan Africa continue to uphold laws penalizing same-sex relationships, Kenya included. (VOA)

Next Story

A Group of LGBTQ YouTubers Sue the Platform for Being Bias

The creators include Bria Kam and Chrissy Chambers of BriaAndChrissy

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FILE - Signage is seen inside the YouTube Space LA offices in Los Angeles, California, Oct. 21, 2015. VOA

A group of LGBTQ YouTubers are reportedly suing the video-sharing platform and its parents firm Google over poor moderation of “hate” content and unfairly restricting the videos of LGBTQ creators.

According to a lawsuit filed on Tuesday in the US District Court for the Northern District of California, since 2016, YouTube and Google have indulged in “unlawful content regulation, distribution, and monetisation practices that stigmatise, restrict, block, demonetise, and financially harm the LGBTQ+ Plaintiffs and the greater LGBTQ+ Community”, a report in the CNET on Wednesday.

“They flagged our pride. They did not allow us to buy ads. They restricted us. They demonetized us. And they did not stand up for us,” a YouTuber posted in a video to the site to announce the lawsuit, the report added.

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FILE – Silhouettes are seen in front of a Youtube logo, in this picture illustration taken in Zenica, Oct. 29, 2014. VOA

The creators include Bria Kam and Chrissy Chambers of BriaAndChrissy.

Chrissy Chambers of BriaAndChrissy is a channel aimed at LGBTQ viewers that claimed that YouTube unfairly marked their videos as restricted, thus, limiting who could view them and how much money they could make out of it.

Also Read: Apple to Let iPhone Users to Tell Siri to Play Songs

Another plaintiff named Lindsay Amer said the video-sharing major did nothing when Nazi trolls flooded her comments section with hate which discouraged parents from letting their kids watch her channel while others claimed YouTube’s mysterious moderators targeted videos that included the words “gay”, “lesbian”, or “bisexual”, according to PCMag. (IANS)