Commercial Speech, Gender Expression
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Closed Contracts Expression
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The High Court in Nairobi, Kenya held that the provisions in the Penal Code which criminalize same-sex sexual conduct were constitutional and did not infringe the rights to equality, dignity, privacy, health, expression, freedom and security of the person, and the right to a fair hearing. The case had been brought by individuals and human rights NGOs in Kenya who argued that individuals experienced discrimination and physical attacks as a result of their actual or perceived sexual orientation. The Court held that there was insufficient evidence brought in the case to demonstrate infringement of the rights, and held that decriminalizing same-sex sexual conduct would lead to cohabitation of same-sex couples which would infringe the constitutional provisions that protect the family as the “natural and fundamental unit of society” and the important role of “culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation.”
On June 9, 2016 the Kenyan High Court in Nairobi certified a Petition brought by EG, a Kenyan lawyer and director of an NGO, which challenged sections 162(a) and (c) and 165 of the Kenyan Penal Code which criminalize same-sex sexual conduct. EG described himself as a gay man who had been subjected to stigma and discrimination and who was “exposed to the risk of wrongful prosecution under the impugned provisions” [para. 3]. He brought the Petition in his own interest but also the interests of the LGBTIQ community more broadly.
On November 2, 2016 the High Court certified another Petition challenging the same provisions filed by four individuals and three civil society organizations. JM submitted that he had been “subjected to attacks, rape and discriminatory acts because of his perceived or actual sexual orientation” [para. 4]. MO also submitted that he been subjected to public attacks, a gang rape, arrests and discrimination based on his actual or perceived sexual orientation [para. 5]. MO’s mother, MAO, joined the Petition on the grounds that she had witnessed some of the discrimination against MO and had had to secure his release from police detention. YP submitted that her rights to privacy, dignity and security of the person were violated and she had experienced public attacks, arbitrary detention, evictions from her home and attacks on her business because of her perceived or actual orientation. MO, a priest, submitted that he had witnessed discriminatory attacks against members of the LGBTIQ community. The three organizations that entered the petition were the Gay and Lesbian Coalition of Kenya, the Nyanza Western and Rift Valley Network and the Kenya Human Rights Commission, a human rights NGO.
On January 18, 2018, the Court consolidated the Petitions because of their similar nature. Both Petitions were brought against the Attorney General in his capacity as the government’s principal legal advisor. The consolidated Petition also included ten interested parties comprising advocates of LGBTIQ rights, a senator, the Ummah Foundation (an NGO furthering Islamic values), the Kenyan Christian Professional Forum, and the Kenya Legal & Ethical Issues Network on HIV & AIDS. Additionally, two amici curiae were admitted: the Katiba Institute, an NGO focusing on international human rights and constitutional law; and the Kenya National Commission on Human Rights.
Section 162 states: “Any person who – (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge or him or her against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years”.
Section 165 states: “Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years”.
The Petitions argued that the impugned provisions infringed their rights to dignity, privacy, freedom and security of the person, equality and health.
During the hearing of the case, the Indian case Johar v. Union of India 76 of 2016 (2018) was decided and determined that the provisions criminalizing same-sex sexual conduct were unconstitutional.
The High Court of Kenya delivered a unanimous decision of Judges Roselyn Aburili, E. C. Mwita and John M. Mativo. The central issues were whether section 162(a) and (c) and 165 were unconstitutional on grounds of vagueness and uncertainty and then whether they violated the constitutionally-protected rights to equality; human dignity; freedom and security of the person; privacy; freedom of conscience, religion, belief and opinion; health; and to a fair hearing.
EG submitted that he “is emotionally, affectionately, sexually and spiritually attracted to persons of his own sex” and had experienced discrimination in Kenya as an openly gay person [para. 24]. He gave examples of the discrimination, such as being denied barber services, receiving death threats on social media and having been exposed in the Weekly Citizen as one of “Kenya’s Top Gays” which was a violation of his privacy. He explained that he had been forced to limit the stigma by keeping a “low profile” and that the provisions “affect the sexual and emotional aspects of his experiences of being human, his core private intimacy” [para. 24]. He also referred to the statement issued by a number of Parliamentarians on February 19, 2014, calling for the arrest of all homosexual persons and inviting the public to arrest them if the police failed to do so.
EG’s Petition included evidence from experts: Prof. Dinesh Bhugra, a professor of psychiatry and mental health and cultural diversity submitted that same-sex sexual orientation was a “natural variation within human sexuality and not any kind of illness or disorder” [para. 31]; Prof. Chris Beyrer, a professor of public health and human rights, epidemiology, international health, behavior and society explained how the laws criminalizing same-sex sexual conduct exacerbated the health risks of men who have sex with men (MSM); and Prof. Lukoye Atwoli, a Kenyan professor of psychiatrist, testified that “an individual’s sexual orientation is largely fixed and immutable” [para. 39] and that “it is not possible to change sexual orientation through medical intervention” [para. 46].
EG submitted that the phrases “unnatural offences”, “carnal knowledge of any person against the order of nature” and “permits a male person to have carnal knowledge of him or her against the order of nature” were not defined in the legislation, and so were unjustifiably vague. EG argued that “to criminalize one’s conduct of engaging in sexual intimacy in private with another consenting adult, and in a manner which causes no harm … amounts to a fundamental interference in the person’s experience of being human and their personal dignity and privacy and amounts to degrading treatment” [para. 63]. In addition to arguing that the provisions infringed the Kenyan Constitution, EG also submitted that the provisions infringe international law which is incorporated as part of Kenyan domestic law in terms of article 2 of the Constitution. He emphasized the global trend towards decriminalization of same-sex sexual conduct – highlighting other former British colonies which had decriminalized this conduct – and referred to the Yogyakarta Principles which “articulate state and non-state actors’ obligations to respect, promote and fulfil the human rights of all persons regardless of sexual orientation and gender identity” [para. 137]. EG submitted that the Court should not take into account the religious and moral views of Kenyans.
EG emphasized that the Petition did not concern same-sex marriage, and submitted that as there were other laws that prohibit non-consensual sex and public sexual acts there was no need to criminalize consensual same-sex sexual conduct
The petitioners in the second petition made similar arguments, and particularly emphasized the rights protected by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the African Charter on Human and People’s Rights.
The Attorney General submitted that the impugned provisions were not vague and stated that unnatural sexual acts cover “every other form of sexual act other than what is in the order of nature, capable of producing off springs” [para. 177]. She also submitted that because the provisions do not only apply to homosexual acts they cannot be discriminatory. She argued that the impugned provisions sought to protect the “social values and morals at the family level” and argued that the right to privacy could not be used to “[tear] into the social fabric of the Kenyan society” [para. 182]. She added that decriminalizing same-sex sexual conduct would lead to the expectation that people who engage in such conduct could then marry, and that the institution of marriage needed to be protected as an important social pillar. She maintained that “homosexuality is considered despicable and insulting to traditional morality” [para. 183], and implored the Court to “interpret the impugned provisions with conservatism in sexual matters, as the Constitution was not designed to put Kenya among the front-runners of liberal democracy in sexual matters” [para. 182]. In response to the comparative jurisprudence put forward by the Petitioners, the Attorney General “urged the court to develop its own indigenous jurisprudence and not rely on foreign decisions in interpreting the Constitution” [para. 185].
Six of the interested parties made similar arguments to the Petitioners, and emphasized the stigma, discrimination and sexual violence to which MSM (Men who have sex with men) are vulnerable. They submitted that “the state has failed to protect the LGBTIQ community by enforcing the impugned provisions … and that the enforcement encourages discrimination and stigma among the gay community” [para. 168]. They submitted that the right to privacy “entails not having information regarding an individual’s private affairs revealed” [para. 172].
The Kenya Christian Professional Forum agreed with the Attorney General that the legislative mandate vests in Parliament, that the Courts should be “wary of international instruments and foreign jurisprudence” [para. 193] and that “the law is an expression of moral inclinations in the society” [para. 73], and reminded the courts of the “place of public morality in the development of jurisprudence” [para. 192]. The Forum referred to the equality clause in the Constitution and highlighted that as it had been modelled on the South African equality – which explicitly protects against discrimination on the grounds of sexual orientation – the fact that the Kenyan provision does not include sexual orientation indicates that the Constitution “does not legalize homosexual conduct” [para. 75]. It also included an affidavit from an obstetrician-gynecologist who submitted that “persons who identify themselves as homosexuals are often introduced and recruited through sexual abuse by adults and that those who experience such abuse are more likely to abuse children” [para. 77]. It also rejected the arguments put forward that individuals are “born gay” and referred to research that sexual orientation can be changed through treatment.
The senator, Irunga Kangata, highlighted that during the drafting of the 2010 Constitution “5000 memoranda from Kenyans overwhelmingly rejected homosexuality” and that “none of the Kenyan communities or culture embraces homosexuality and that historically homosexuality was punished through ostracization or death” [para. 100]. He stressed that Kenya has a “socially conservative Constitution that detests [homosexuality]” [para. 200] and noted that 35 African countries ban same-sex sexual conduct.
The trustees of the Ummah Foundation argued that “the Holy Quran and Hadith abhor homosexuality, which echoes Kenyan cultural values” [para. 103].
The amicus Katiba Institution emphasized the transformative aspect of the 2010 Constitution and highlighted the differences between that Constitution and previous iterations. The Katiba Institute argued that the impugned provisions are discriminatory because they differentiate between people because of their sexual orientation, and said that the provisions infringe the right to dignity by encouraging negative stereotypes of LGBTIQ individuals.
The Kenya National Human Rights Commission argued that the provisions target the gay community simply because of their sexual orientation and so infringe the right to equality. It submitted that the term “sex” in the equality clause should be extended in meaning to include “sexual orientation” [para. 223].
In response to the Indian decision in the Johar case, the Petitioners emphasized how the Indian courts had considered comparative jurisprudence. The Attorney General reminded the Court that circumstances in foreign cases may be different to the local context, and Kangata “argued that foreign decisions interfere with the independence of the Court and that only the Constitution and the law bind this court” [para. 240].
The Court noted that this case gave it the opportunity to “re-state” the principles set out in the 2010 Constitution, which has been described as “fiercely progressive and transformative” and which ushered in a new value set for the country [para. 243]. The Court described its role under the Constitution as promoting the spirit, purposes, values and principles of the Constitution, advancing the rule of law and human rights and noted that the Court is permitted to develop the law. The Court stressed that when interpreting the Constitution it must afford the constitutional provisions a generous interpretation, but that the “social and historical background” of legislation is also relevant in interpreting the law [para. 249]. The Court noted that the rules of interpretation require it to consider the plain meaning of legislative provisions and to have reference to the intention of the legislature in drafting the law.
The Court acknowledged that the Penal Code does not define “unnatural offences” and “against the order of nature”, but referred to Black’s Law Dictionary which defines “carnal” as “of the body” and “carnal knowledge” as “the act of a man in having sexual bodily connection with a woman” [para. 270]. With reference to the Botswana case Gaolete v. S 1991 BLR 325 (HC) the Court noted that “against the law of nature” means “penetration through the anus” [para. 271], and referred to Black’s Law Dictionary which defined “unnatural offence” as sodomy or buggery. The phrase “indecent act” is defined in the Sexual Offences Act as “any contact between the genital organs of a person, his or her breasts and buttocks with that of another person … [and] exposure or display of any pornographic material to any person against his or her will, but does not include an act which causes penetration” [para. 273]. Accordingly, the Court held that the impugned provisions are not vague, ambiguous or uncertain.
In examining whether the impugned provisions infringed the right to equality and to be free from discrimination under article 27 of the Constitution, the Court acknowledged the right’s importance. The Court referred to the ECtHR case Willis v. UK Application No. 36042/97  ECHR 483 in emphasizing that the “Constitution only prohibits unfair discrimination” which it defined as “differential treatment that is demeaning” [para. 288]. Here, the Court accepted the test for unfair discrimination as laid out in the South African case of Harksen v. Lane NO 1998 (1) SA 300 (CC) and referred to the case of Mmusi v. Ramantele 2012 2 BLR 590 HC, noting that where there is a legitimate reason for differentiation between people, that cannot amount to discrimination. The Court held that the language of sections 162 and 165 is clear, that it refers to all persons and all male persons respectively, and so cannot constitute discrimination against the LGBTIQ community. The Court rejected the submissions put forward by MO that he had been discriminated against and attacked, holding that MO was required to provide convincing evidence of those attacks rather than making mere submissions. The Court held that there had been no violation of the right to equality.
The Court held that the Petitioners had not provided sufficient evidence to succeed in a claim that their rights had been violated by the criminalization of same-sex sexual conduct. The Court accepted that the right to health, as set out in article 43, is a fundamental right because without health other rights may not be realized or enjoyed. However, the Court held that no evidence had been provided by the petitioners to demonstrate that they had been denied access to healthcare, and so held that their rights to health had not been infringed.
The Petitioners had argued that the vagueness of the offence and the “undignified and dehumanizing manner of gathering evidence to support the offence” meant that their right to a fair hearing (protected by article 50) was not guaranteed [para. 309]. The Court held that the Petitioners had not provided any evidence to demonstrate that the gathering of evidence in prosecuting the offences was undignified of dehumanizing and that, as the Court had already found that the offences were not vague, the right to a fair hearing had not been infringed.
The Court held that the Petitioners had not pleaded the violation of article 29, the right to freedom and security of the person, with sufficient specificity and noted that this right “is essentially intended to protect the physical integrity and dignity of an individual” [para. 319]. Accordingly, the Court held that there was no violation of the right to freedom and security of the person.
The Court also found that the Petitioners had not submitted any evidence on how their rights to freedom of conscience, religion, belief and opinion, protected by article 32, had been infringed.
The Court examined the right to dignity, under article 28, and the right to privacy, under article 31 together. Here, the Court reiterated that article 2(5) of the Constitution provides that international law forms part of Kenyan law, accepted Prof Richard Lillich’s description of the Universal Declaration of Human Rights as the “Magna Carta of contemporary international human rights law” [para. 33], and referred to the African Charter on Human and Peoples Rights. With reference to the South African case of S v. Makwanyane 1995 (3) SA 391 (CC), the Court recognized the fundamental importance of the right to dignity. In respect of the right to privacy, the Court noted that it has become settled that “this right becomes more powerful and deserving of greater protection, the more the intrusion it is into one’s intimate life” [para. 340]. The Court highlighted the inter-related nature of the rights to equality, dignity and privacy and noted that the “Constitution places human dignity and equality as the central theme to our constitutional order” [para. 342].
The Petitioners and the Attorney General all relied on foreign jurisprudence and the Court confirmed that it had considered foreign and local jurisprudence in this case and noted that foreign jurisprudence “is of persuasive value because it shows how courts in other jurisdictions have dealt with the issues that confront us” [para. 355]. However, the Court emphasized that “foreign case law will not always provide a safe guide for interpretation of our Constitution” [para. 355]. In reference to Kenya Airports Authority v. Mitu-Bell Welfare Society Limited Civil Appeal 216 of 2014 (2016) and Jasbir Singh v. Estate of Tarochan Singh Rai 4 of 2012 (2013) the Court cautioned that when developing constitutional law, courts must exercise caution in applying foreign jurisprudence to ensure that the courts “develop our common law in a manner that promotes the values and principles enshrined in our Constitution” [para. 356].
The Court provided an analysis of comparative jurisprudence. It discussed the Indian cases Naz Foundation v. Government of NCT of Delhi 160 (2009) DLT 277 (which decriminalized homosexuality) and the appeal in Koushal v. Naz Foundation (2014) 1 SCC 1 (which overturned that decriminalisation) and noted that these were followed by Johar case which did decriminalize homosexuality. The Court also referred to the European Court of Human Rights cases Dudgeon v. UK App. No. 7525/76 (1981) and Norris v. Ireland App. No. 10581/83 (1988) cases which had held that the criminalization of homosexual acts between consenting adult males was an unjustified infringement of the right to privacy. The Court also noted that in Orozco v. Attorney General of Belize Claim No. 668 (2010) the Court in Belize held that, in finding that the criminalization of same-sex sexual conduct infringed the rights to dignity, privacy, equality and non-discrimination, “international treaty obligations must inform the interpretation of the Constitutional Rights” [para. 364]. The Court also referred to the US case of Lawrence v. Texas 539 U.S. 558 (2003), the South African case of National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC) which both declared that the criminalization of same-sex sexual conduct was unconstitutional. Those were compared to the Zimbabwe case of Banana v. S (2000) 4 LRC 621 (ZSC) and the Botswana case of Kanane v. S 2003 (2) BLR 67 (CA) which both held that it was not unconstitutional. The Court also mentioned the ECtHR case of Chapin and Charpentier v. France App. No. 40183/07 (2016) which held that there was no right to marriage for homosexual couples.
This was the first case brought in Kenya challenging the criminalization of same-sex sexual conduct, but the Court referred to Non-Governmental Organizations Co-ordination Board v. EG Civil Appeal No. 145 of 2015 (2019) which had held that the right to equality allowed for the registration of LGBTIQ organizations. The Court of Appeal in that case had held that “sexual orientation” could be read into the equality provision but only “where circumstances allow” [para. 372].
The Court accepted that the Bill of Rights confers rights on individuals, but emphasized that it also permits limitation of those rights in certain instances. The Court described a constitution as a “mirror reflecting the national soul, the identification of the ideals and aspirations of the nation” [para. 379]. It added that although a generous interpretation of constitutional rights is generally encouraged, in some cases the purposive interpretation must dominate.
The Preamble to the Constitution “acknowledges ethnic, cultural and religious diversity, the nurturing and protecting the wellbeing of the individual, the family, communities and the nation, a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law” [para. 387]. Article 11 of the Constitution “recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation” [para. 388]. The Court referred to the constitution-making process and referenced the Final Constitution of Kenya Review Commission Report which “recommended the recognition of marriage only between individuals of the opposite sex and the outlawing of same sex unions”. The Court explained that this gave rise to article 45 of the Constitution which “provides that the family is the natural and fundamental unit of society and the necessary basis for social order” and that “every adult has a right to marry a person of the opposite sex, based on the free consent of the parties” [para. 391]. In addition, the Court noted that the “expert evidence was unanimous that there is no conclusive scientific proof that LGBTIQ people are born that way” [para. 393].
The Court held that the impugned provisions do not violate the rights to dignity to privacy, and that even if they did it would be difficult to “rationalize this argument with the spirit, purpose and intention of Article 45(2) of the Constitution” [para. 395]. This is because – even though the Petitioners did not argue for the right to marriage – the Court held that decriminalizing same-sex sexual conduct would lead to LGBTIQ individuals living together as couple which would be in “violation of the tenor and spirit of the Constitution” [para. 396]. The Court also referred to the Marriage Act which provides protection to cohabitation for unmarried couples, and stated that decriminalizing same-sex sexual conduct would “indirectly open the door for unions among persons of the same sex” which would also infringe article 45 [para. 397].
The Court accepted that courts around the world had decriminalized same-sex sexual conduct, but also noted that this was not the case in all cases. The Court held that “the will of the people is expressed in the Constitution, it represents societal values” through article 45 and that this must be given effect to [para. 403].
The Court rejected the Petitioners’ argument that “sexual orientation” should be read in as one of the prohibited grounds of discrimination in this case because doing so would defeat the purpose of article 45.
Accordingly, the Court held that section 162 and 165 of the Penal Code did not infringe the Constitution and dismissed the Petitions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court’s decision places significant emphasis on the reflection of culture in the Constitution and the need to give effect to the nation’s values and beliefs. In rejecting the Petitions the Court did not only find that there was no evidence to demonstrate that criminalizing same-sex sexual conduct infringed constitutionally-protected rights, but based its ruling on the fact that decriminalization of this conduct would open the door to same-sex marriage – which is prohibited by the Constitution.
The decision marks a significant departure from international standards on sexual expression in particular and to the protection of the fundamental rights to dignity, privacy, freedom and security of the person, equality and health more generally. Kenya is a state party to the UN Charter, The Banjul Charter, the UDHR, and the ICCPR, all which obligate States to observe and protect Fundamental rights and freedoms.
Human Rights Watch observed that the decision also marked a departure from previous rulings from the Kenyan courts which upheld fundamental rights of LGBTIQ persons.
As the Petitioners’ Counsel noted there is a global trend towards decriminalization of homosexuality, most notably in the recent landmark case from India Navtej Singh Johar v. Union of India. The Petitioners also cited to the The Yogyakarta Principles that affirm binding international legal standards with which all States must comply relating to sexual orientation. Principle One states, “[a]ll human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.”
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