Gay Kenyans sense they may be on the brink of a historic legal triumph

NAIROBI — Faced with police shakedowns and abuse, rejection from religious conservatives and rampant discrimination, Kenyan LGBT rights activists are challenging provisions of this former British colony’s Victorian-era penal code that implicitly outlaw gay sex.

In a move that could spawn copycat tactics across Africa and beyond, three Kenyan LGBT rights groups have petitioned a court in Nairobi to scrap those legal clauses and grant LGBT Kenyans the same rights to privacy, equality and dignity as other Kenyans. If the groups succeed, Kenya would be the second country in Africa — after South Africa — to do so.

Court hearings in February and March pitted ardent activists against those who believe that Christianity, the majority faith here, is more in line with inherent local values than what they see as a pernicious Western import: homosexuality.

The latter group says it represents the values not only of most Kenyans but also of most Africans, and it has funded its own polls to provide proof, using the surveys to argue that Kenya’s courts should respect the “moral majority.” In this view, which is often echoed by prominent government officials, gay sex is unnatural, un-African and unconstitutional in a country that is 83 percent Christian and that cites God in its law and national anthem.

The LGBT rights groups have argued that the case is about basic human rights.

“There are times when the court has to be the trailblazer and teach society,” said Paul Muite, a renowned lawyer representing the National Gay and Lesbian Human Rights Commission. “This is one of those times.”

At its core, the dispute stems from what was known in British law as the “sodomy offense,” which criminalized “carnal knowledge of any person against the order of nature.” The prohibition has bedeviled LGBT people across the former British Empire for more than a century.

Like most former British colonies, Kenya has retained portions of the crown’s Victorian-era ­penal code, including vaguely worded clauses against gay sex. The legal verbiage was coined in 1860 for Britain’s colony in India and tweaked in 1899 in Queensland, Australia, to encompass all kinds of “indecent practices between males.” It was then reproduced across the seven seas.

In fact, more than half of the nearly 80 countries in the world that criminalize gay sex inherited those laws from the British Empire. Those same laws were overturned in the United Kingdom between 1967 and 1982.

The presiding judges in the Kenyan case have adjourned until April 26, when they will announce a date to reveal their judgment. Muite said that even if the judges rule for the LGBT activists, two subsequent rounds of appeals, ending in the Supreme Court, could last a year or more. Read more via Washington Post