Human Rights Watch (HRW) has recently reported on neighborhood mobs in Kenya’s coastal region attacking community members they suspect of being homosexual. Accusations of homosexuality have resulted in brutal attacks, sexual assault, arbitrary arrests, and degrading tests such as anal exams. HRW recounted the stories of victims such as Adam, who was walking home when a group of men attacked him with a broken glass bottle, slicing open his neck, collarbone, and chest. Think Progress reported on an incident where a group of police officers attacked Marion, a female sex worker, forcing her to a secluded area where they beat and raped her. Marion’s attackers did not use condoms. Neither Adam nor Marion filed a police report. Human Rights Watch recently released an extensive report on violence against the LGBTQ community in Kenya. The report highlighted these pervasive acts of violence and human rights abuses as well as Kenya’s failure to uphold its obligations under both international and domestic law to protect these individuals and prosecute their attackers.
Prejudice against the LGBTQ community is embedded within Kenya’s Penal Code, which characterizes homosexuality as an offense against morality. The Code considers anal sex “carnal knowledge against the order of nature,” a crime punishable by up to fourteen years in prison. Individuals who are victims of violence based on their sexual orientation fear reporting will lead to retaliation and punishment under the Penal Code, according to HRW. As violence against the LGBTQ community increases, the discussion surrounding these issues has become more public. Several NGOs and international actors are pushing the national dialogue and highlighting human rights abuses. In July of this year, U.S. President Barack Obama visited Kenya, forcefully speaking out against the inequality present in Kenya’s legal system. “I believe in the principle of treating people equally under the law,” President Obama stated, “and [members of the LGBTQ community] are deserving of equal protection under the law.” Kenya’s President Kenyatta responded, “the issue of gay rights [in Kenya] is really a non-issue.”
Various mechanisms of international law require Kenya to protect individuals against violence and torture, as well as to ensure the rights to equality, non-discrimination, and privacy. According to the HRW report, both the African Commission on Human and Peoples’ Rights (ACHPR) and the International Covenant on Civil and Political Rights (ICCPR) obligate member nations to protect citizens generally from arbitrary violence based on discrimination. Resolution 275 passed by the ACHPR explicitly calls on member states to provide the LGBTQ community legal protection from violence. The resolution requires implementation of laws that effectively investigate and prosecute perpetrators who target individuals based on their sexual orientation or gender identity. Similarly, the ICCPR obligates member states to “protect all persons . . . including members of marginalized groups, from violence, in upholding their rights to life and to security and freedom from cruel, inhuman, or degrading treatment.” The UN Committee Against Torture considers anal exams degrading treatment prohibited under the Convention against Torture and the ICCPR. Further, the ACHPR and the ICCPR prohibit discrimination and inequality before the law, specifically on the basis of sexual orientation.
HRW reports Kenya is bound as well through its constitution: Article 29 provides the right to freedom and security of the person and specifically prohibits “torture and cruel, inhuman, or degrading treatment”; Article 27 establishes the right to equality and non-discrimination; Article 28 protects the right to dignity; Article 31 provides the right to privacy; Article 33 provides the right of expression; and Article 56 “extends specific protections to ‘minorities and marginalized groups.’”
The Kenyan government has a responsibility to do more for the LGBTQ community to prevent and punish violence, according to HRW. However, victims of mob violence have expressed concern over taking their complaints to police, fearing that reporting could worsen matters. After attacking Adam in the street, police later arrested him under Kenyan Penal Code §162 and §165; both prohibit “unnatural offenses” including “carnal knowledge against the order of nature” and the act of “gross indecency” between males. Thereafter, a Kenyan court approved an order to have Adam subjected to a forced anal exam. The Kenyan government has not arrested or charged any of Adam’s attackers.
The mob attacks in Kenya’s coastal region seem indicative of both the injustices and inadequacies of Kenya’s current judicial system. Reports indicate that LGBTQ individuals face attacks without recourse, discriminatory prosecution, torture at the hands of police, and constant fear simply because of their sexual preferences. Repealing the Penal Code laws that criminalize same-sex relations may be the first step in preventing further injustice.