And the decision could influence other African nations into following suit.
A landmark case where three judges are set to review the existing penal code which outlaws “unnatural sex” has the potential to decriminalise gay sex, or make the law a lot worse. The law is currently being reviewed, as it is seen to be too “vague.”
The way the judges rule could also end up having worldwide implications, if the judges rule to legalise gay sex. As Kenya is one of the most powerful Eastern African nations, there is the possibility that other African nations could also decriminalise it.
And as the legality of gay sex is set to be one of the major talking points at the Commonwealth Heads of Government Meeting 2018, if Kenya has made it legal then other Commonwealth countries could also make moves to follow.
If gay sex is decriminalised in Kenya, it will lead the way for the LGBTQ community there to gain other rights. However, religious groups in America are currently funding the Kenya Christian Professional Forum which are hoping to make the law stricter by having homosexuality explicitly targeted.
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The case was brought up because of what happened to two men who were caught having sex in Mombasa two years ago. The two men had to undergo an “anal test”, which is considered to be torture by international human rights groups, before being prosecuted.
Kenya’s most powerful and successful lawyer, Senior Counsel Paul Muite is leading the case for decriminalization. The director of the National Gay and Lesbian Rights Commission, Eric Gitari, will also be involved in the case.
Gitari is calling for sections 162 and 165 of the penal code to be decriminalised, arguing that they are discriminatory and unconstitutional. Kenyan law says that all people have a right to equality, freedom from discrimination, human dignity, freedom and security of the person and right to privacy.
Gitari argues that having sex is an “essential element of how individuals express love and closeness and how they establish and nurture relationships.”
Activists in the country say that the case could go either way, as one judge is in favour of decriminalisation, one isn’t, and the other is undecided.
Related: India’s supreme court could be about to decriminalise gay sex
One activist, Denis Nzioka, told Gay Star News: “We really do hope finally for once Kenya may ban arrest and imprisonment based on homosexuality.
“People will be following this in the media, and we can only hope the dialogue is balanced,” he added.
He went on to say: “Decriminalization is different from the lived reality of Kenyans. How do you move forward? How do you ensure provisions trickle down to the people who are being discriminated? Could this be a precedent for marginalized people?
“We need interpretation of what this Penal Code is saying about us, our behavior, our lives,” he finished.
However, Nzioka added that Kenyan judges have been making a lot of progressive decision lately. He pointed to ones against female genital mutilation and giving women more access to abortion rights.
However, there are some instances of anti-LGBTQ stances being taken by officials, with Disney Channel show Andi Mack being banned in the country for featuring a gay character, and an official saying that two lions caught having gay sex should be sent for counselling.
The case’s next hearing is due to be on 22 February.
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