by Elizabeth Kabari
You may have seen the hashtag #Repeal162 on your social media feeds recently. Some of you are sure that it concerns you; others are sure that it doesn’t. However, it should concern everyone because it is a human rights issue, and the denial of rights for one is a denial of rights for all.
The #Repeal162 movement is a part of the struggle for the recognition and protection of the rights of the LGBTQIAPK community in Kenya. It consists of 2 ongoing court cases: Eric Gitari v Attorney General & another (Petition no. 150 of 2016) and John Mathenge and 7 others v Attorney General (Petition no. 234 of 2016).
The main purpose of these petitions is to ask the court to declare Section 162 (a) and (c) and section 165 of the Penal Code (Cap 63) as unconstitutional and therefore inapplicable in Kenya.
Section 162 of the Penal Code makes it a felony, punishable by 14 years’ imprisonment, for any person to:
- have carnal knowledge of any person against the order of nature; or
- have carnal knowledge of an animal; or
- permit a male person to have carnal knowledge of him or her against the order of nature.
Additionally, where the above acts are performed without the consent of the other person or where consent was obtained through force, coercion, lies etc, the prison sentence goes up to 21 years.
Section 165 is similar and states that:
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.
Both sections fall under the chapter 15 of the Penal Code which provides for “offences against morality.” The Penal Code we have is basically copied and pasted from 19th Century Colonial English criminal law. This chapter in particular exists to ensure that Christian principles, which were very important in England at that time, could be more thoroughly enforced. This is illustrated by the language used in the chapter.
For example, Section 151 criminalises the “detention of females for immoral purposes” while Section 153 criminalises persistently soliciting or importuning for “immoral purposes”. The phrase “immoral purposes” as used in these sections means a sexual purpose. This conflation of morality and sex is a very Judeo- Christian idea. Furthermore, Section 165 criminalises “gross indecency” between men. The term “gross indecency” is defined by the Oxford dictionary as “a term formerly used to denote certain criminal offences, in particular sexual activity between men (before this was decriminalized) and sexual offences against children”. The Judeo-Christian influence shines through here too.
The purpose of the law should not be to enforce morality, Christian or otherwise. Law should be a means by which people’s behaviour is regulated to ensure they do not harm each other and can co-exist peacefully.
What’s the difference? Morality is a fluid and subjective code. Every culture, religion, group has its own moral code, and this code is constantly changing and evolving to suit the needs and context of the people. Therefore, the law cannot be a tool for enforcing morality in non-homogenous societies such as Kenya which consists of at least 44 tribes, at least 6 religions (if you cluster all the various Christian denominations into one religion and traditional religions into another), 3 main economic classes…the list goes on.
With all this diversity, it is impossible that we will all subscribe to the same moral codes, and even more impossible that we will all agree on Christian morality as the way to go. Thus, the law should be neutral.
This concept is acknowledged in our Constitution. We note that one of the reasons we adopted our Constitution is because we are “…proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.” We recognize that to live in peace together, we need to come up with a common set of supreme rules which bind and protect everyone. We accept that we cannot depend on our individual moral codes if we are to co-exist because if we do so, we exclude Kenyans who do not subscribe to the same code from protection and recognition by the law.
In the case of Section 162 and Section 165, we have not only excluded the LGBTQI community from protection by the law, but also justified their persecution.
Furthermore, there is no definition in Cap 63 of the phrase “against the order of nature” which is used in Section 162(a) and (c). If we were to interpret is as lay people, there would also be no way to determine what the “order of nature” is. Nature is as nature does and thus varies from species to species and from time to time.
However, the Kenyan courts have accepted that whatever this phrase means, it includes sodomy, more specifically, anal penetration of one man by another. This interpretation is one that was inherited from England, just like our Penal Code. I used the phrase “includes sodomy” because, from my understanding of the Kambi case referenced above, sex that is “against the order of nature” does not seem to only be limited to sodomy. Hence, case law only gives us a partial definition.
If we are to assume based on this partial definition and our understanding of the origins of the Penal Code, and purpose of Chapter 15 in particular, that the natural order of sex is sex for procreation, then any sex that cannot result in reproduction is outlawed by Section 162(a) and (c). This includes: oral sex, hand-play, anal sex etc. It is irrelevant whether the sex is between heterosexual participants or homosexual participants.
Section 162(c) makes it clear that consent is not a defence as it expressly outlaws consensual sex merely on the grounds that it is “against the order of nature”, that is, against the Christian idea of what sex should look like. Meanwhile, Section 165 criminalises all sexual activities between men regardless of whether there is consent or not, because that is not how Christianity envisions sex. The criminal element in these sections is derived purely from the kind of sex being had, not because there is anything inherently wrong with said sex, but because the Bible decreed it to be wrong.
While there is nothing wrong with subscribing to Christian ideals when it comes to sex or anything else, this is a personal and private decision in which the state should not interfere. Similarly, where people choose not to subscribe to Christian ideals, the law should not interfere. The law only comes in when, in upholding their beliefs, a person goes against the supreme rules that we have all agreed on – the Constitution. For example, in the case of sexual relationships, the law should only come in where a constitutional right is violated, such as nonconsensual sex, which violates the right to human dignity (Article 28) and the right to freedom and security of the person (Article 29).
By forcing Christian ideals on all Kenyans, Section 162 (a) and (c) and Section 165 violate the right to freedom from discrimination (Article 27), the right to privacy (Article 31), and freedom of conscience and belief and opinion (Article 32).
Finally, there’s the issue of enforcing these sections. When addressed promptly and efficiently, it is easy to prove sodomy (in this instance, I use sodomy to mean the nonconsensual anal penetration of one male by another) and bestiality. However, in the case of the consensual sex criminalised by Section 162(a) and (c) and Section 165, how can you prove anything happened?
In the first place, you have no victim(s), thus no complaint to the police and no P3 form. This means no material evidence. And, unless this sex was had in public, you have no witnesses and consequently, no oral evidence. How can you prosecute such a case? You can’t; at least not successfully.
Because of the difficulty in actually proving these cases, the police seldom bother to follow through with arrests made under Section 162 and 165, unless the offence complained of is sodomy or bestiality. However, this does not stop police from raiding gay bars and other gay-friendly spaces to harass patrons, threaten them with charges of prostitution and sodomy, and in some cases, arrest and extort them for money. This is a blatant violation of human rights.
Chapter 15 also leads government officials to believe they have the power to outlaw events that they think promote homosexuality. While such declarations have no standing in law because they are procedurally defective, they are still effective and interfere with the lives of Kenyans generally, be they part of the LGBTQI community or not.
Whichever way you look at it, be it from a validity standpoint or from an enforcement point of view, Section 162 (a) and (c) and Section 165 of the Penal Code have no place in Kenya. They call for the State to insert itself where it does not belong and interfere with Kenyans’ enjoyment of their rights. They also enable the harassment and extortion of Kenyans by police.
Most importantly, they threaten the diversity we cite as a point of national pride in our Constitution. which is why we all need to support the #Repeal162 movement.
Elizabeth is an advocate with a passion for human rights and a love for research and reading.