11

Emergent momentum for equality: LGBT visibility and organising in Kenya

Jane Wothaya Thirikwa

In Kenya, lesbian, gay, bisexual, transgender (LGBT) and queer identifying persons have at one point or another endured violent attacks, lived in fear, or been at the receiving end of crimes targeted at them due to their sexual orientation and/or gender identity and gender expression (SOGIE). This state of being is mainly the result of legal interpretations and perceptions of legislation based upon colonial anti-sodomy laws promulgated by the British Empire to control social and sexual conduct. Kenya is among the 36 (of 53) Commonwealth member countries still criminalising same-sex conduct.

Consensual adult same-sex conduct is criminalised under sections 162(a), 163 and 165 of the Kenya Penal Code, which punishes contravention with imprisonment of up to 14 years.¹ These sections criminalise ‘carnal knowledge against the order of nature’, widely interpreted as anal intercourse between men. This criminalisation of consensual sex between adult males has been used to legitimise discrimination and stigmatisation. People who identify as LGBT are isolated by the burden of stigma and are often ostracised by family members, religious formations and society at large. They are also constantly exposed to shame through the media and self-appointed moral policing. Socially, culturally and politically, their rights of expression have been almost non-existent. Because of the legal implications of their homosexuality, they are unable to obtain protection from the state.

This criminalisation of homosexual conduct in Kenya provides a legal basis for, and thus largely contributes to, the appalling obstacles faced by sexual minority populations in securing non-discriminatory access to healthcare, livelihoods, education, justice mechanisms and other vital services. Although Kenyan authorities rarely enforce the anti-sodomy laws, the practical effects of criminal sanction include widespread discrimination in education, healthcare and employment. Criminalisation is also instrumental in inciting threats, abuse and other violations against actual and perceived LGBT people because perpetrators may believe that the state would be less inclined to bring full justice to those who pursue violence against these groups.

It also exacerbates blackmail and extortion, more so for those living closeted or double lives. These manipulative tactics take advantage of the vulnerability of those LGB people, for instance, who are in heterosexual relationships or marriages. Some may be blackmailed by their heterosexual partners, while others may even be forced to give up their children and asked to part with exorbitant sums for their maintenance. Criminal elements have also taken to social media and LGB dating sites, luring victims and setting them up for blackmail. Moreover, governmental recognition of anti-sodomy laws – as well as the homophobic rhetoric of state officials – contributes to prejudiced and hateful attitudes that spur violence against LGBT individuals.

Visibility through LGBT organising

In Kenya, the use of and representation of appropriate, accurate and inclusive terminology to describe and classify individuals and groups on the basis of SOGIE varies. Some organisations restrict themselves to a discourse on LGBT rights, while other focus on intersex, transgender and gender non-conforming (ITGNC) individuals.

Introducing diversity, and in particular sexual and gender diversity, into public discourse has been an extremely challenging task for organisations across Africa, partly because most LGBT people are closeted, and groups representing them are hampered by legal obstacles and non-existence of visibility channels. Kenya’s pioneer LGBT coalition – the Gay and Lesbian Coalition of Kenya (GALCK) – was created in 2006, to bring together small, isolated LGBT groups and to defend the rights of the LGBT community as a collective. Besides the absence of a platform to address SOGIE, GALCK also faced the lack of a visibility breakthrough, the consequence of media bias and negative public discourse. Other external factors included disassociation from the wider civil society movement and the security risks the organisation’s staff were exposed to due to their line of work. However, the movement gained momentum after the seventh World Social Forum (WSF) in Nairobi (2007), where activists aimed at educating and changing perceptions on homosexuality, and integrating SOGI and gender expression issues in the wider social justice movement.

The conference brought together more than 60,000 delegates from all over the world. Amid participants denouncing injustices of all kinds, the issues of homophobia and transphobia were raised by the collective of lesbian, gay, bisexual, transgender, intersex (LGBTI) organisations, which, besides GALCK, included the Coalition of African Lesbians (CAL) and Sexual Minorities Uganda (SMUG). However, this was met with hostility. Some delegates heckled Kasha Jacqueline Nabagasera, a prominent human rights activist from Uganda, who is also an out lesbian, during her presentation. As well, LGBT community members suffered a backlash after they were featured in local news coverage. Nevertheless, the Nairobi WSF opened up spaces for activists in Kenya to speak up more boldly about homophobia and transphobia. It also strengthened regional LGBT organising, specifically in the East African and Southern African regions.

With continuing advocacy and emphasis on creating allies within the wider social justice efforts, the LGBT movement in Kenya is constantly reviewing its strategies to incorporate a multifaceted advocacy approach that is based on the intersectionality of social justice struggles. As a result, the multi-tier route to achieving equality and non-discrimination, spearheaded by GALCK, has since been adopted. This approach has brought together a network of GALCK’s partners and stakeholders which focuses on legal and non-legal strategies for decriminalisation of same-sex conduct between consenting adults. It has also widened the scope of social justice issues to include other concerns including health, security, an enabling legal environment and quality citizenship. The decriminalisation approach emphasises changing the narrative of the movement from sexuality and identity politics only to quality citizenship. This strategy is envisioned to link with and inform advocacy on other human rights clusters such as legal, health and sociopolitical contexts.

Although the consideration of ITGNC persons often intersects with sexual orientation, these communities are gender minorities, not necessarily sexual ones. However, a general lack of understanding of SOGIE concepts exists in Kenya, leading to ITGNC persons being treated in the same way as sexual minorities. In order to meet their specific needs, organisations such as Jinsiangu and Transgender Education and Advocacy (TEA) cater for the human rights and social wellbeing of ITGNC individuals. Their vulnerabilities include being subjected to bullying, the legal hurdles to be surmounted to get names and gender markers changed on documents, psychosocial challenges, and inadequate or complete lack of medical/health services. In a 2012 interview with Envisioning Global LGBT Human Rights (Envisioning), Jinsiangu co-founder Guillit Amakobe² said that the organisation ‘helps intersex and transgender people with information and resources regarding transitioning, counselling and complexities of psychosocial challenges for ITGNC people’. The organisation also facilitates safe spaces and support specific to members’ needs. Jinsiangu targets the psychosocial challenges faced by ITGNC individuals, while TEA focuses on such legal issues as name changes, procurement of identification documents and advocacy for legislation that protects transgender and intersex persons.

Correlation between criminalisation and violence

Criminalisation of same-sex conduct gives a pretext for stigmatising and discriminatory attitudes, and it radically undermines human rights efforts for sexual minorities. It also creates structural barriers for persons perceived to be and/or who are LGBT or queer when they try to access and enjoy fundamental human rights such as privacy, health and sociopolitical participation. As with much patriarchal socialisation, most of the evidence of the effects of this criminalisation has primarily cited gay and bisexual males and other men who have sex with men (MSM). Though the criminal law against homosexual conduct in Kenya does not explicitly reference lesbian, bisexual and other women who have sex with women (WSW), the fundamental stigmatisation of same-sex relations has also had an adverse effect on transgender women and those who identify as gender non-conforming.

Lesbian, bisexual and transgender women and gender non-conforming individuals suffer persecution as a direct result of the broad interpretation of the criminalisation of homosexuality. They are also subjected to physical and mental abuse for what is seen as undermining heterosexual masculinity. Notably, women who have sex with women routinely suffer egregious affronts to their human dignity and endure distinct forms of discrimination because of their status as both women and sexual minorities. The United Nations Development Programme’s (UNDP) 2012 Gender Inequality Index (GII), for example, ranked Kenya 130th out of 148 countries. The GII demonstrates gender inequality in relation to reproductive health, empowerment (in the form of parliamentary representation as well as attainment in secondary education) and labour force participation. While Kenyan women in general struggle to achieve full equality in these dimensions, WSW face extraordinary obstacles in accessing sexual and reproductive health services, education and employment. Gendered stereotypes coupled with moral imperatives often justify the discrimination and abuse of women, particularly those who do not visibly conform to prevailing gender norms and expressions.

There is no hate crime legislation in Kenya, and incitement to violence on account of SOGIE is not considered hate speech under the National Cohesion and Integration Act of Kenya.³ Targeted violence on the basis of real or perceived SOGIE is common, though many of these crimes go unreported by victims for myriad reasons. Many are shamed and accused of provoking perpetrators because of their identity and gender expression. Others have described being sexually assaulted by the very law enforcement agents to which they have reported cases, while others fear that the resulting court proceedings would expose and out them.

According to statistical analysis of violence patterns between 2012 and April 2014, conducted by the National Gay and Lesbian Human Rights Commission (NGLHRC),⁴ 12 lesbian women stated they had been raped on account of their sexual and gender non-conformity. None of these survivors of sexual violence reported the attack to the police for fear of stigma and ridicule from immediate family members and law enforcement agents. In February 2014 mobs in Nairobi stripped two lesbians naked. Ten lesbian women and gay men reported they had been beaten in their own homes and their property vandalised on account of their perceived sexual orientation. Verbal violence and threats were reported by 95 per cent of respondents.⁵ Most victims stated that this abuse had begun with family members or guardians feeling obliged to punish them for abdicating their feminine or masculine roles in society.

Targeted violence is also perpetrated by outlawed militia and vigilante groups in different parts of the country, such as the Mungiki, Sungu Sungu and Taliban Boys. These militant gangs and so-called vigilante movements are widespread throughout Kenya, particularly in urban environments and in low-income areas of major cities. They operate outside the law, mostly in poor, crime-infested neighbourhoods where the police have little authority or influence. To fund their activities, the gangs extort protection money from businesses and residents, public transport operators and any other opportunistic ‘soft spots’ such as real or suspected gays and lesbians. The militia gangs terrorise and blackmail them, threatening them by leaving pamphlets at their homes and residences, warning them to vacate or face dire consequences. Such activities have been supported, albeit unobtrusively, by unscrupulous politicians seeking to take advantage of divide-and-rule ethnic politics as they vie for political supremacy. In a country riddled with economic privation and suffering from government failure to quell criminal insurgents, the groups’ impunity has been emboldened by politically driven unrest.

Another population at risk within the LGBT cluster – the sex workers – also face the ever-present threat of violence. All sex workers are at risk, but those who identify as LGBT are susceptible to greater degrees of assault. Mobs attack some and others are murdered on the streets. Yet more are constantly subjected to the brutality of City Council askaris [officers] and the police during night patrols, who arrest them and in some cases sexually assault them. GALCK as a coalition is making a resolute effort to document these incidents, along with its member groups and other LGBT partner organisations such as NGLHRC, the Nyanza, Rift Valley and Western Kenya Coalition, Persons Marginalized and Aggrieved (PEMA Kenya) and Health Options for Young Men on AIDS and STIs (sexually transmitted infections). These will not only form vital evidence to support cases filed against perpetrators, but also build precedents in the eventual pursuit of decriminalisation.

Organised religion, hate campaigns and impunity

Organised religion, both Christian and Muslim, is extremely hostile to homosexuality in terms of its preaching and its lobbying of the government to further criminalise gay and lesbian people. An influx of mostly American evangelists who have imported anti-gay bigotry and policies in the name of morality has exacerbated homophobia in the region.

A network of heavily funded American Christian evangelists are spreading noxious rhetoric and using discredited science to skew public opinion. Their organisations include the American Center for Law and Justice (ACLJ), which has offices around the world, including its East African Centre for Law and Justice office in Kenya. According to the ACLJ, these affiliate offices ‘engage in domestic and international litigation, provide legal services, advise individuals and government agencies, and counsel clients on human rights issues’ (2016). Another is Family Watch International (FWI), which has also set up a base in Kenya. Led by Sharon Slater, it has continuously lobbied African governments ‘to withstand the anti-family agenda’ (Kaoma, 2012, p. 16). Slater addressed legislators, policymakers and religious leaders in the country, and even coordinated a ‘pro-family’ conference in Nairobi 2002. It also supported the Kenya Christian Professionals Forum in organising the National Family Conference in May 2015 where Slater was one of the main speakers.

Through a network of religious formations in the country such as the Kenya Christian Lawyers Fellowship and right-wing politicians, the churches continue to instigate violence and discrimination against LGBT people. They promulgate that homosexuality is taboo, ungodly, ‘un-African’ and a threat to the ‘normal’ family unit. Often they portray homosexuality as sexual abuse, equating it to paedophilia and bestiality. They promote beliefs that to engage in it is a mortal sin, one that society should control. The pictures they paint tend to portray homosexuality as a threat to humanity. These religious organisations sometimes brand themselves as a ‘traditional values movement’ and are usually protected by the conservative global machinery of religious institutions.

Kenya’s human rights record was reviewed at the United Nations Universal Periodic Review (UPR) in January 2015. One key recommendation presented by a collective of LGBT and partnering civil society organisations was the development and enforcement of protective laws for LGBT persons, including anti-discrimination and hate crime legislation that forbids violence or incitement on all grounds, including SOGIE. The existence of regressive laws and policies has resulted in state-sponsored homophobia and impunity in cases of public incitement to violence against LGBT people.

Often spearheaded by pockets of religious clergy and conservative, and sometimes fringe, political affiliations, hate campaigns propagate targeted violence against perceived or actual LGBT people. In 2010, unsubstantiated rumours about a planned ‘gay wedding’ circulated in Mtwapa, in Kilifi. Local radio stations in Mombasa picked up the unconfirmed story. The Council of Imams, Preachers of Kenya and the National Council of Churches of Kenya called a news conference and demanded the closure of the Kenya Medical Research Institute (KEMRI), a government health centre that provides HIV/AIDS services to the community, accusing it of ‘providing services to criminals’. Later, several imams and muftis (Islamic scholars) told their congregations during Friday prayers to be vigilant and to expose the homosexuals via a campaign called ‘Operation Gays Out’. An armed mob surrounded the KEMRI health centre and police took several staff members and clients into custody, allegedly to protect them from the mob. However, one of the men taken ‘to safety’ was severely beaten and almost lynched. None of the attackers or the religious clergy who incited the violence have ever been arrested.

Some of the most violent religiously instigated persecutions of LGBT people have taken place in the coastal region, including Mombasa and Malindi. The main LGBT organisations there, PEMA Kenya and Tamba Pwani, attribute this to the complex sociocultural and religious conditions that exist in the region. Culturally, the Swahili people who inhabit the coast of East Africa have maintained a social order of very close-knit families. Since Islam was introduced in the seventh to tenth centuries, its followers have maintained a consistent conservatism, while tolerating traditional customs such as polygamy and close family relations. This combination presents challenges for sexual and gender minorities in the region. The upsurge of international terrorism, especially after the war on Iraq, also saw radicalised and extremist factions emerge within Islam all over the world. A similar form of fundamentalism within evangelical Christianity, combined with international global politics, has led to the strengthening of conservative teachings and tendencies, especially the targeting of homosexuality. These extremist religious movements have backed the wave of anti-homosexuality and the introduction of even more punitive legislation across African countries, including a failed attempt in Kenya.

Religion and politics

Hate speech against LGBT persons is rampant in Kenya, including from high-ranking government officials and politicians. William Ruto, the deputy president since 2013, has been consistently homophobic, often chastising gays and lesbians from church pulpits. In February 2013, during a televised debate on Capital FM Kenya, he equated homosexuals to dogs. In May 2015 he cited religious beliefs to denounce homosexuals, stating that they are unwelcome and should not be part of Kenyan society (Daily Nation Kenya, 2015). Daniel Arap Moi also condemned homosexuality during his presidency claiming that it was ‘un-African’ and un-Christian (BBC News, 1999).

Since 2009 when Ugandan MP David Bahati first proposed the Anti-Homosexuality Bill (AHB), a clampdown on LGBT people’s rights has spread into Kenya. Morality dogmas and political innuendos fuelled the ensuing upsurge of homophobia and transphobia, particularly those put about by right-wing legislators seeking political mileage. In March 2014, the AHB (now Act) became law in Uganda.⁶

Fuelling the anti-homosexuality rhetoric, in July 2012, the Anglican Bishop Julius Kalu of Mombasa told a congregation that Christians are confronted by ‘the enemies of the Church’, mainly homosexuals and lesbians, and that terrorism is a lesser threat (Beja, 2012). Building further upon this negative perception, Aden Duale, the majority leader, stated during a news conference in March 2014 that there was ‘need to go and address the issue the way we want to address terrorism. It is as serious as terrorism and as any other social evil’ (Ngirachu, 2014). Instigators who use extremist religiosity and conservative interpretations of religious doctrines contribute immensely to the use of violence and discrimination against sexual and gender minorities.

A group of Kenyan members of parliament (MPs), led by Irungu Kang’ata, launched a parliamentary caucus against homosexuality in February 2014. This was during a period of intense international debate over whether the Ugandan president should sign the AHA. The caucus lobbied for stricter enforcement of sodomy laws, including calls for citizens to arrest suspected gays and lesbians where police had failed to act. Further, a 2014 Facebook post by I. Kang’ata⁷ also incited negative public opinion and violence. This hate campaign was followed in the same month by an anti-homosexuality protest in Nairobi. Its leader said that homosexuality ‘is an affront to nature, religious and biological norms. It is a disgrace to the men and women victims who are supposed to be role models with upright morals in society’ (Agoya, 2014).

Backed by the MP caucus against homosexuality, a fringe political party, the Republican Liberty Party, proposed and presented an anti-homosexuality bill to the Kenyan parliamentary committee on justice and legal affairs. It prescribed, among other penalties, stoning to death as a punishment for foreigners engaging in homosexuality and life imprisonment for Kenyan lesbian and gay individuals. The bill’s proposal was aimed at strengthening the nation’s capacity to deal with internal and external threats to the traditional heterosexual family. The bill did not reach parliament, though the petitioners continued to lobby the parliamentary committee to present the bill for debate there.

Faith, identity and family

For most LGBT people, finding the balance between their faith, their identities and relationships with their families is extremely challenging. The centrality of the family is founded on religion, marriage and procreation, which are not seen as individual choices, but instead as social obligations. People who come out to their relations or are unwillingly outed are burdened with the guilt of shaming their family. Social disapproval of these individuals extends beyond them to their immediate relatives. In many instances, their families disown them and their social support is cut off.

‘My mother had me arrested and locked up for a week. We had a serious argument and she told me to pack my things and leave her house’, said Brian Macharia in 2012,⁸ a volunteer at GALCK. His mother did not want to be associated with the shame, stigma and social isolation that would result when the news spread that her son was gay. I experienced the same conflicts once I came out to my family as a lesbian. The socialisation around family is that everyone is expected to do them proud in every way, including avoiding scandal or inappropriate behaviour that would shame and tarnish the family name.

This narrative is experienced by many LGBT people, when their relations are concerned about their social reputation, disapproval and potential backlash. Where both the immediate and external family members are verbally abused, humiliated, ostracised or condemned within their religious affiliations because of being related to LGBT people, some members resort to inhumane treatment, which they justify as preserving the honour of the family, including ‘corrective rape’ of lesbians by male relatives, disownment and forced marriage. Few of these violations are reported and, if they are, victims get little or no redress.

Health implications

Criminalisation of same-sex sexual conduct among consenting adults has led to their increased vulnerability to HIV/AIDS and those who are under care being unable to access sexual reproductive health services and treatment (National AIDS Control Council and National AIDS and STI Control Programme, 2014). Persons infected by HIV are still stigmatised in Kenya and other parts of the world. The burden of this stigma is doubled by the shaming of, and discrimination against, persons suspected of engaging in same-sex conduct. Criminalisation obstructs access to information, support structures, care and treatment of persons affected by HIV/AIDS. According to the 2014 report cited above, HIV prevalence among MSM was 18.2 per cent. Yet this population also experiences lack of – or disproportionate interruptions to – treatment, caused largely by attempts to arrest and hold people suspected of engaging in consensual same-sex conduct (Mbote/Gay Kenya Trust, 2011).

Exceptional challenges are also faced by WSW, especially inadequate sexual reproductive and mental healthcare services. According to a study conducted by Minority Women in Action (2013) – a constituent member organisation of GALCK – one out of four respondents had never visited a physician, for reasons that included fear of being outed to their relations by family doctors, or being turned away altogether on account of their SOGIE. In other cases, healthcare providers are insensitive to the needs of WSW and may be prejudiced by personal beliefs.

Legal reform and decriminalisation

Legal reform is one pragmatic strategy in the fight to decriminalise same-sex conduct. Spearheaded by GALCK’s legal advisory team, the movement began exploring possible approaches toward decriminalisation and legal reform. This endeavour faces stiff challenges, such as legislative delay, emotional public debate, backlash on the LGBT community and heightened social stigma.

The existence of the criminal law contributes to the wider climate of discrimination and encourages the sense of impunity for acts of violence, as perpetrators assume that their actions are justified because same-sex conduct is illegal.

In a 2012 interview with the Envisioning research team in Kenya, Anthony Oluoch, GALCK’s former legal officer pointed out that the movement had consulted other LGBT movements from India and South Africa at a Nairobi workshop in 2011, to identify the most effective strategies for decriminalisation, borrowing from the experiences in both countries. Delhi’s High Court had decriminalised consensual same-sex conduct in July 2009, but the Supreme Court reversed the judgment in December 2013, recriminalising it. Of interest in the deliberations with activists from India and South Africa was the incorporation of evidence and documentation to create precedents for arguments against the criminal law in Kenya. The strategy includes challenging sections of the Penal Code on the basis of the Kenyan Constitution, which includes a non-discrimination clause. ‘We want the courts to determine if this law is conducive with the constitution, that states that every Kenyan is entitled to equal treatment before the law. To question if these laws infringe on people’s rights, which they do’, said Oluoch.⁹

The LGBT movement and its partners are cognisant of the fact that for legal reform to be actualised, a variety of gradual legal processes must be conducted, because constitutional reform can take years. Combined with a vigorous social change campaign, it can gain public support, benchmarked on constitutional provisions for basic human rights for all. Judicial review of the Penal Code sections is also a strategy, with the ultimate objective being to offer protection to vulnerable minorities.

As a result of criminalisation, LGBT organisations have been denied legal registration, forcing the majority of them to register as community-based bodies and/or under pseudonyms, including GALCK and almost all of its constituent member institutions. Non-profit bodies are registered and governed by the National Non-Governmental Organisations Board (NGO Board), under the Office of the Attorney General. The NGO Board has occasionally justified refusal to register these LGBT groups, citing their use of names including words like ‘gay’ and ‘lesbian’, and suggesting that the existence of such bodies is against the public interest. The emergence of independent movement partners, such as the NGLHRC, increased the legal reform momentum through increased legal discourse on SOGIE. Indeed in 2013, the NGLHRC sued the NGO Board and the attorney general for the former’s refusal to register the organisation.

In April 2015, the Kenya High Court ruled in NGLHRC’s favour, stating that LGBTI persons can formally register their organisations.¹⁰ The bench also found that the NGO Board had violated Article 36 of the Constitution (freedom of association), when they consistently refused NGLHRC’s registration application. The Constitutional Court further held that morality should not be justification for limiting rights in an open and democratic society, under Article 24 of the Constitution of Kenya, and further ordered the NGO Board to comply and register the NGLHRC.

Although this judgment was groundbreaking, it also fuelled a national anti-homosexuality movement, led by conservative religious formations and the anti-homosexuality caucus of MPs led by former Kiharu MP, Irungu Kang’ata. The consistently homophobic Deputy President William Ruto also weighed in on the judgment, saying at a church service that Kenya had no room for homosexuals. Kenya’s attorney general, Githu Muigai, has since filed a notice of appeal against the ruling for the registration of NGLHRC.¹¹

In July 2014, the High Court compelled the NGO Coordination Board to register a transgender organisation, TEA, after it had refused to do so.¹² In another landmark case, in October 2014, the High Court ordered the Kenya National Examinations Council (KNEC) to change the names of a transgender woman’s academic certificates and remove the male gender index. The High Court judge ruled that KNEC should recall Audrey Mbugua’s national examination certificate and replace it with one in her name, which should be without a gender mark.¹³ This ruling was a big win for the transgender community, who face immense challenges when applying for name changes on their identification and academic documents. It also indicated what can be achieved through the judicial system in Kenya for minority groups.

Rising visibility

Sexual and gender minority persons do not enjoy protections under Kenyan law. The result of this criminalisation of consensual same-sex conduct has entrenched stigma and discrimination and other human rights violations, including deprivation of life. However, the LGBT movement has remained steadfast and continues to grow. The GALCK coalition, which comprises more than 15 member organisations from across the country, is also supporting and building the capacity of grassroots LGBT groups, to activate and strengthen their engagement within the human rights networks.

Collectives of human rights defenders continue to urge the state to decriminalise sexual relations between consenting adults of the same sex in order to bring its legislation in line with the Constitution of Kenya, which guarantees equal rights for all citizens. In order for all Kenyans, including sexual minority persons, to enjoy quality citizenship, the government has also been urged to end the social stigmatisation of homosexuality and send a clear message that it does not tolerate any form of harassment, discrimination, or violence against persons based on their sexual orientation. By various means including the United Nations UPR of Kenya in 2010, and most recently in January 2015, these recommendations have been made clear to the government.

Concurrently, the LGBT movement continues to partner with a widening base of partners and stakeholders who are amplifying their voices and incorporating LGBT issues into wider social justice efforts. These include the Kenya Human Rights Commission (KHRC), which in 2011 published a report titled, ‘The outlawed amongst us: a study of the LGBTI community’s search for equality and non-discrimination in Kenya’ (KHRC, 2011). Sexual orientation and gender identity/expression as protected grounds anchored in human rights have also been incorporated by other partners such as the Kenya National Commission on Human Rights (KNCHR).¹⁴ Collaborations with KNCHR have informed advocacy through the UN UPR, as well as through political and democratisation processes.

Other human rights organisations, responsible for issues such as LGBT refugee rights, health, religion, economic development and sociopolitical causes of action, have strengthened the network. These collaborations have enabled a home-grown approach to LGBT activism and movement building. The support of civil society continues to encourage meaningful participation in a wide range of public actions. These struggles’ intersectionalities have contributed to the amplification of the LGBT community’s voice in calling for freedom of expression, opinion, assembly and association. Key attention has also been paid to the legal environment, and there is tremendous support from both local and international partners.

Stakeholders and partners have exposed and called for sweeping changes to the state’s inadequate protection of human rights defenders as well as to its efforts to introduce legislation to shrink civil society spaces.

The LGBT movement in Kenya continues to grow, braving the odds and being resiliently steadfast in the struggle for equality. Its partners and allies are injecting much-needed support and using their strengths to catalyse activists’ efforts. The repeal of legal provisions that punish sexual relations between consenting same-sex individuals is a key item still remaining, a platform that will provide protection for and equal treatment of LGBT persons.¹⁵

References

Agoya, V. (2014) ‘Lobby plans anti-gay protest’, Daily Nation Kenya, 18 Feb., available at: www.nation.co.ke/news/homosexuality-President-Barrack-Obama-Uganda/-/1056/2211834/-/bryhf3/-/ (accessed 20 Mar. 2018).

American Center for Law and Justice (2016) ‘About the American Center for Law and Justice’, available at: http://aclj.org/our-mission/about-aclj (accessed 20 Mar. 2018).

Beja, P. (2012) ‘Bishop: gays dangerous than terrorists (sic)’, Standard Media Kenya, 23 Jul., available at: www.standardmedia.co.ke/article/2000062448/bishop-gays-dangerous-than-terrorists (accessed 20 Mar. 2018).

BBC News (1999) ‘Moi condemns gays’, 30 Sep., available at: http://news.bbc.co.uk/2/hi/africa/461626.stm (accessed 20 Mar. 2018).

Capital FM Kenya (2013) ‘Kenya deputy presidential debate (part 1)’, YouTube video, 14 Feb., available at: www.youtube.com/watch?feature=player_embedded&v=OU7neGAvmAc (accessed 20 Mar. 2018).

Daily Nation Kenya (2015) ‘There is no room for gays, warns Ruto’, 3 May, available at: www.nation.co.ke/news/There-is-no-room-for-gays-warns-Ruto/-/1056/2705458/-/36g1obz/-/ (accessed 20 Mar. 2018).

Gaballa, S. (2017) ‘A crucial case on freedom of association in Kenya’, The Star Kenya, 4 Mar., available at: https://www.the-star.co.ke/news/2017/03/04/a-crucial-case-on-freedom-of-association-in-kenya_c1516295 (accessed 1 Nov. 2017).

Kaoma, K.J. (2012) ‘Colonizing African values: how the U.S. Christian right is transforming sexual politics in Africa’, Political Research Associates, available at: www.sxpolitics.org/wp-content/uploads/2012/08/colonizingafricanvaluespra.pdf (accessed 8 Nov. 2017).

Kenya Human Rights Commission (2011) ‘The outlawed amongst us: a study of the LGBTI community’s search for equality and non-discrimination in Kenya’, available at: www.khrc.or.ke/mobile-publications/equality-and-anti-discrimination/70-the-outlawed-amongst-us/file.html (accessed 20 Mar. 2018).

Mbote, D.K./Gay Kenya Trust (2011) ‘Breaking the walls of criminalization’, Storymoja Africa, Nairobi, available at: www.gkenyatrust.org/wp-content/uploads/2012/03/Breaking-the-Wall-of-Criminalization-Business-Case.pdf (accessed 9 Nov. 2017).

Minority Women in Action (2013) ‘Breaking the silence: the status of women who have sex with women in Kenya’, available at: https://www.galck.org/wp-content/uploads/2017/01/Breaking-the-Silence-Status-of-Kenyan-WSW-2013-first-version.pdf (accessed 9 Nov. 2017).

National AIDS Control Council (2009) ‘Kenya national AIDS strategic plan 2009/10–2012/13’, available at: http://siteresources.worldbank.org/INTHIVAIDS/Resources/375798-1151090631807/2693180-1151090665111/2693181-1155742859198/KenyaNationalStrategy.pdf (accessed 31 Oct. 2017).

National AIDS Control Council and National AIDS and STI Control Programme (2014), ‘Kenya HIV prevention revolution road map’, available at: www.lvcthealth.org/onlinelibrary?format=raw&task=download&fid=17 (accessed 31 Oct. 2017).

Ngirachu, J. (2014) ‘Homosexuality a serious problem as terrorism, says Duale’, Daily Nation Kenya, 26 Mar., available at: www.nation.co.ke/news/politics/Homosexuality-a-serious-problem-as-terrorism--says-Duale/-/1064/2258336/-/kgxersz/-/ (accessed 20 Mar. 2018).

United Nations Development Programme (2013) ‘Human development report 2013’, available at: http://hdr.undp.org/sites/default/files/Country-Profiles/KEN.pdf (accessed 8 Nov. 2017).

Documentary films

A Short Film on Kenyan LGBTI Stories (2013) dir. C. Kaara, J. Muthuri and I. Reid (Kenya and Canada: Gay and Lesbian Coalition of Kenya and Envisioning Global LGBT Human Rights), available at: https://vimeo.com/73786260. Extracts are cited from interviews with Anthony Oluoch and Brian Macharia.

Telling Our Stories (Kenya Portraits section) (2014) (Kenya and Canada: Gay and Lesbian Coalition of Kenya and Envisioning Global LGBT Human Rights), available at: http://envisioning-tellingourstories.blogspot.com (accessed 16 April 2018). Extracts are cited from the interview with Guillit Amakobe.

______________

1 Penal Code, revd. edn., 2014, available at: www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063 (accessed 1 Nov. 2017).

2 Interviewed on 26 Aug. 2012 by Immah Reid, GALCK and Envisioning. An excerpt is included in the Kenya Portraits section of the Telling Our Stories (2014) documentary series.

3 National Cohesion and Integration Act, 2008, available at: http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/NationalCohesionandIntegrationAct_No12of2008.pdf (accessed 1 Nov. 2017).

4 Obtained by author from the unpublished NGLHRC report ‘Legal Aid Clinic summary report 2012–14’.

5 Ibid.

6 The Anti-Homosexuality Act (AHA) was nullified by Uganda’s Constitutional Court on 1 Aug. 2014. For the history of its defeat, see ‘The multifaceted struggle against the Anti-Homosexuality Act in Uganda’, ch. 10, this volume.

7 On 24 Feb. 2014. See: https://m.facebook.com/irungu.kangata/posts/10152237181040853?stream_ref=10 (accessed 20 Mar. 2018).

8 Interviewed on 30 Jul. 2012 by Immah Reid, GALCK and Envisioning. An excerpt is included in the documentary A Short Film on Kenyan LGBTI Stories (2014).

9 Interviewed on 1 Aug. 2012 by Immah Reid, GALCK and Envisioning. An excerpt is included in for the documentary A Short Film on Kenyan LGBTI Stories (2013).

10 Eric Gitari v. Non-Governmental Organisations Co-ordination Board and four others, 2015, available at: http://kenyalaw.org/caselaw/cases/view/108412/ (accessed 1 Nov. 2017).

11 For an overview of the case and the appeal, see Gaballa (2017).

12 Republic v. Non-Governmental Organizations Co-ordination Board and another ex-parte transgender education and advocacy and three others, available at: http://kenyalaw.org/caselaw/cases/view/100341/ (accessed 1 Nov. 2017).

13 Republic v. Kenya National Examinations Council and another ex-parte Audrey Mbugua Ithibu, available at: http://kenyalaw.org/caselaw/cases/view/101979/ (accessed 1 Nov. 2017).

14 KNCHR is a public human rights institution established through a government act, while the KHRC is a non-profit organisation.

15 On 15 Apr. 2016 Eric Gitari filed a decriminalisation case. The petition requests that the ‘Honourable Court declare Sections 162 and 165 of the Penal Code, CAP 63 (disputed provisions) to be unconstitutional, and accordingly void and/or invalid to the extent that they purport to criminalise private consensual sexual conduct between adult persons of the same sex’. See Eric Gitari v. attorney general and another, available at: http://kenyalaw.org/caselaw/cases/view/122862/ (accessed 1 Nov. 2017).