Mini-Symposium: Kenya and LGBT Rights – EG v the Hon. Attorney-General

Karan GUPTA

Supreme Court of India

On 24 March, 2019, a three judge Bench of the Kenyan High Court dismissed a constitutional challenge to Sections 162(a), (c) and 165 of the Kenyan Penal Code, which criminalized acts which are ‘unnatural’, ‘against the order of nature’ and grossly indecent. It was contended that the provisions disproportionately affected LGBT individuals and should be struck down inter alia for (i) being vague and uncertain; (ii) constituting discrimination prohibited by Article 27 of the Kenyan Constitution; and (iii) violating their right to dignity and privacy enshrined in Articles 28 and 31 respectively of the Constitution.

Surveying precedent, the Court defined carnal knowledge as sexual intercourse (paragraph 270), against the order of nature as anal sex (271) and gross indecency as contact between genital organs, or the breasts and buttocks (273). Hence, the lack of a definition within the statute did not by itself render the provision unconstitutional (278, 279). A similar approach was followed vis-à-vis this contention by the Botswana High Court on 11 June 2019 wherein court provided definitions were employed to reject the contention premised on vagueness. Interestingly, the Indian Supreme court, dealing with a similar provision (Section 377 of the Indian Penal Code) in Navtej Singh Johar v. Union of India, swung the other way to hold that terms such as ‘order of nature’ perpetuate gender stereotypes. Zachary Kramer argued along similar lines:

“Discrimination against gays and lesbians reinforces traditional sex roles. The primary thrust of such discrimination is the gender-based stigmatization of gays and lesbians, deriving from the idea that homosexuality departs from traditional gender roles and that “real” men and women should not be attracted to a member of the same sex. This portrayal relies heavily on what Bennett Capers calls the “binary gender system.”

Dealing with Article 27, the Court rightly held that the Article prohibits unfair discrimination, which ‘happens when a law or conduct, for no good reason, treats some people as inferior or less deserving of respect than others’ (288). Only the existence of a legitimate purpose and a rational connection between the differentiation and the purpose justifies the discrimination (293). Having said this, the Court held that the provisions do not target any specific group as the words ‘any person’ in S. 162 and ‘any male person’ in S. 165 does not mean a specific sexual orientation (in this case, LGBT individuals) (295-297).  This is constitutionally unsustainable as it was argued that it is the enforcement of these provisions that disproportionately affected LGBT individuals (298).

The constitutional basis for this is found in Article 27(4) of the Kenyan Constitution which expressly prohibits indirect discrimination. Indirect discrimination by it very definition involves a situation ‘when a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group.’ Thus, the intention of the legislation is irrelevant in an assessment of whether in effect prohibited discrimination is the result.

Though constitutional analysis is highly contextual, it is interesting to note that in Navtej Singh Johar (extensively cited during oral arguments in Kenya), the Indian Supreme Court assessed the provision in terms of criminalizing a certain set of identities in its operation and perpetuating gender stereotypes and ultimately struck a similar provision down. In that case, Justice Chandrachud expanded on the scope of Article 15 of the Indian Constitution to include indirect discrimination.

Despite its explicit mentioning in Article 27(4) of the Kenyan Constitution, the Court did not assess the claim of indirect discrimination as it held that ‘save for the allegations made in the Petition and the affidavits, no tangible evidence was given to support the allegations’ (299). This is strange, for as Gautam Bhatia rightly points out, the nature of social discrimination and prejudice is experiential and only testimonies of those affected serve as viable evidence in such cases. The petitioners detailed the discrimination and hostility faced by them through their affidavits and testimonies (24, 31, 34, 37, 68, 69). The Court does not specify what evidence would be sufficient.

With respect to Article 28 (right to human dignity) and Article 31 (right to privacy) of the Kenyan Constitution upon which the petition would either ‘stand or fall’, it was contended that that the police subject members of the LGBT community to intrusive, undignified and humiliating searches (343), and that the criminalisation of private homosexual acts constitutes an unjustified interference with the right to privacy (326). The Court noted that neither of these rights are absolute as Article 24 (1) permits limitation by law if reasonable and justifiable ‘in an open and democratic society based on human dignity, equality and freedom’. However, the Court held that no finding on Article 24 was required (401), as Article 45 (2) which confers a right to every adult to marry a person of the opposite sex negates any claim under Articles 28 and 31 (395, 396). The Court erroneously equated a right to marry a person of the opposite sex with a duty to do so and held that allowing the petition will lead to same sex persons living together as couples, which will violate the tenor and spirit of the Constitution (396).

Finally, it is surprising to note this statement in the judgment: ‘We also appreciate that if they were born that way, they have rights like everyone else’ (394). The alternate approach that the Court suggests would alter the outcome is misplaced as the argument for LGBT rights is rightly framed in terms of decisional autonomy and not biological factors.

There is hope that the Court of Appeals will overturn the High Court decision. In NGO Co-ordination Board v EG, the Court of Appeals held that though Article 27(4) does not expressly state ‘sexual orientation’ as prohibited ground of discrimination, the word ‘including’ denotes that the grounds are not exhaustive and includes ‘sexual orientation’. It is only when the court seriously engages with this Article that it will succeed in moving from seeing the provision as the criminalization of a supposedly neutral act to recognizing it as discrimination based upon certain identities.

Though there is specific recognition that the Kenyan Constitution ‘entrenches respect for human dignity, the achievement of equality and the advancement of human rights and freedoms, as the foundational values’ (336) and that privacy protects an entitlement to a sphere of private intimacy and autonomy (341), the decision fails to appreciate the evidence before the Court. ‘Sexual orientation, sexual identity and sexual behaviour are distinct and interdependent elements of human sexuality,’ which cannot be divorced from each other. As Judge P N Waki opined in NGO Co-ordination Board, Kenya is moving towards an 'open and democratic society based on human dignity, equality, equity, and freedom' as envisaged by the Constitution. This warrants a ‘look...in the mirror.’

Karan Gupta is a law graduate and gold medalist from NALSAR University of Law, Hyderabad, India and is currently working at the Supreme Court of India. He may be reached at karan.gupta@nalsar.ac.in.

Suggested Citation: Karan Gupta, ‘Kenya and LGBT Rights – EG v the Hon. Attorney-General’' IACL-AIDC Blog (24 July 2019) https://blog-iacl-aidc.org/indian-young-scholars/2019/7/24/kenya-and-lgbt-rights-eg-v-the-hon-attorney-general