Gay Kenyans hope for legal win, eyeing broader shift in Africa

Ben Curtis/AP
Members of the public listen as the High Court in Kenya begins hearing arguments in a case challenging parts of the penal code seen as targeting the lesbian, gay, bisexual and transgender communities, at the High Court in Nairobi, Kenya on Feb. 22, 2018.
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For decades, African opponents of LGBT rights have often argued that homosexuality is a Western import. In 2015, for example, when then-President Barack Obama criticized Kenya’s record on lesbian, gay, bisexual, and transgender issues, he faced a swift backlash. Gay sex is criminalized in more than 30 African countries today, although in many cases those laws were created during the colonial era. Kenyan LGBT activists hope they are on the verge of a major shift, however, with a court case challenging the country’s anti-homosexuality law. It’s part of a wider groundswell, they say, chipping away at legal prohibitions across the continent and pointing to growing acceptance within Africa, not just outside it. “It used to be that lawyers in Africa had to rely on legal precedent from North America or Western Europe in making their cases,” says Wendy Isaack, a researcher in the LGBT rights program at Human Rights Watch. Now, she says, a growing body of African court decisions in favor of LGBT rights are “giving a lot of momentum to these cases.”

Why We Wrote This

In some countries, the language of human rights has been criticized as Western lecturing. But a shift in attitudes may be under way toward LGBT Africans, and it's being driven from within.

When Kenyan feminist blogger Peps was growing up in Nairobi in the first years of the 2000s, lesbian, gay, bisexual, and transgender (LGBT) people didn’t exist.

At least, it didn’t seem like it. There were no out gay people on her favorite TV shows, or in her neighborhood, and being gay simply wasn’t a topic of conversation with her family.

“It was mentioned once in a while in high school, but I never thought of myself as gay,” she says. “I just thought maybe everyone felt like that.”

Why We Wrote This

In some countries, the language of human rights has been criticized as Western lecturing. But a shift in attitudes may be under way toward LGBT Africans, and it's being driven from within.

Now, however, Peps, who asked that she be identified by her nickname, lives in a different world. She is 24 and working in a Nairobi advertising firm, out to friends and family, and runs a popular blog where she writes candidly about love, romance, and health. But despite the increasing openness of the city and country around her, she knows that LGBT Kenyans like her enjoy few legal rights. Even in her relatively accepting social circles, if the wrong person discovers Peps’ sexual orientation, it could have dangerous consequences. “It’s a constant fear,” she says. “I don’t know anyone’s intentions.”

But LGBT advocates hope they are on the verge of a major legal victory. In February, Kenya’s high court heard arguments in a case challenging the country’s colonial-era anti-homosexuality law, which prohibits “carnal knowledge of any person against the order of nature” – or put more simply, gay sex – as a felony punishable with up to 14 years in prison. The case is expected to be decided later this year.

It’s part of a wider groundswell, in which lawyers and activists are using increasingly receptive courts to slowly chip away at legal prohibitions against homosexuality across the continent. (Homosexual sex is still explicitly criminalized in more than 30 countries in Africa.) In coming months, a court in Botswana will also hear a case challenging its “carnal knowledge” law, and activists hope the two cases will help spark change elsewhere – in part, because they point to legal acceptance of LGBT rights within Africa, not just outside it.

“It used to be that lawyers in Africa had to rely on legal precedent from North America or Western Europe in making their cases” in favor of LGBT rights, says Wendy Isaack, a researcher in the LGBT rights program at Human Rights Watch. Now, however, she says there is growing body of African court decisions that legal teams can point to when they challenge laws that criminalize or discriminate against LGBT people. “That’s a really important development, and it’s giving a lot of momentum to these cases.”

Domino effect?

For decades, one of the most commonly made arguments against LGBT rights in Africa has been that being gay is “not African.”

“The gay rights movement is part of a confusion coming from the West [around] the issue of sexuality,” says Charles Kanjama, a lawyer for the Kenya Christian Professional Forum, the core group opposing the decriminalization case there. “It attacks part of our core identity.”

In 2015, when then-President Barack Obama bluntly criticized Kenya’s record on LGBT rights during a trip to East Africa, he met swift and widespread backlash. “There are some things that we must admit we don’t share, [that] our culture, our societies don’t accept,” said Kenyan President Uhuru Kenyatta at the time. “It is very difficult for us to be able to impose on people that which they themselves do not accept.”

But as African courts rule in favor of LGBT rights, the case that being gay is a Western import will become harder and harder to make, activists argue.

“I don’t think it’s a coincidence that these different cases are happening at the same time – these movements cross-pollinate each other,” says Anthony Oluoch, a Kenyan human rights lawyer and the programs manager for the Pan Africa ILGA, an LGBT-rights group based in South Africa. “The age of the movement is different in different countries, but there are great strides being made across the continent.”

In Kenya and Botswana, activists followed similar tactics in the lead-up to challenging the law prohibiting gay sex. In both countries, they started small, pushing for the right for nongovernmental organizations that work with LGBT communities to officially register with government bodies. There were other cases, too. In Botswana, for instance, activists last year won a case to allow a transgender woman to legally change the gender on her identity documents from male to female. And in Kenya, an appeals court ruled in March that subjecting men in police custody to rectal examinations to “prove” they were gay violated their human rights.

“It’s an incremental approach, testing the waters,” says Tashwill Esterhuizen, a South African human rights lawyer who has been involved several cases for LGBT rights in Botswana, including the current challenge of the anti-homosexuality law. “That way when a judge hears a decriminalization case, in some ways the scene has already been set.”

Slow shifts

And though the courts are mostly looking at the legal arguments presented, Mr. Esterhuizen says the fact that societal acceptance of gay rights is growing in many parts of Africa may help to sway their decisions too.

“There’s definitely a shift happening in Botswana’s society,” he says. While many oppose homosexuality, he says that the LGBT community has become more visible in recent years, which has created a growing tolerance. As evidence, he points to the fact that this month, a pan-African conference of LGBT organizations was held in Gaborone, the country’s capital. “That public opinion could play a role [in the court case].”

Anti-homosexuality laws in both Kenya and Botswana stretch back into both countries’ colonial pasts, under a British legal system that mass produced “carnal knowledge” laws around the world in the 19th and early 20th century. Today, more than half the countries with anti-homosexuality laws first acquired those statutes as British hand-me-downs.

“[Critics of LGBT rights] like to say that homosexuality is a Western import,” says Njeri Gateru, head of legal affairs and the acting executive director of the National Gay & Lesbian Human Rights Commission (NGLHRC) in Kenya, which lodged the current court challenge there. “No, homophobia is the Western import.”

Her own office is a testament to its power in contemporary Kenya. Inside, the place is homey and welcoming, with rainbow curtains fluttering in the breeze and walls decorated with a playful arrangement of red, blue, and yellow handprints. But the doors are sheathed in metal bars, and panic buttons are hidden throughout the office, so that staff can quickly alert private security.

For Peps, a single court judgment won’t eliminate the kind of fear that makes NGLHRC bar its doors, or makes her write under a pseudonym and never post photos online that show her face. “It won’t change the minds of many Kenyans, but at least it starts us off on the journey to being our true selves,” she says.

“But there will still be other battles we’re fighting.”

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