ANALYSIS Kilili Nthiw’a 15 July 2022
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”Article 1, UN Declaration of Human Rights
Slightly over two months ago in April of 2022, the life-less body of Sheila Adhiambo Lumumba was discovered at her home, in Karatina, Nyeri County, Kenya. Preliminary reports indicated that six men broke into her apartment, tortured, raped, and killed her. It is alleged that this was a homophobic attack on Sheila. Admittedly, and according to her father, Sheila, who was a non-binary lesbian, did not disclose her sexual orientation to them because she thought such news would shame the family. She was fearful of the effects of such disclosure on her family members as she’d be treated differently and/or avoided. The murder of Sheila came shortly after the murder of Erica Chandra, a transgender person and human rights defender, in September 2021, in the Westlands suburb of Nairobi, Kenya, adding to a series of homophobic and transphobic attacks.
The common denominator in both killings above is that they happened in a country that prides itself as a thriving modern democracy, a bastion of liberal values and one whose constitution is progressive. Additionally, Kenya is a signatory to the United Nations Universal Declaration of Human Rights as well as many international human rights treaties. The debate on whether or not LGBTQI+ rights are human rights has been around for quite some time. However, on December 15, 2011 the OHCHR released its first report on the human rights of LGBTQI persons which detailed the worldwide manifestations of discrimination based on sexual orientation, noting that violence against LGBTQI persons has a history of hate-motivated violence, such as discrimination in work, health care, education, detention and torture.
Before that, 85 countries had signed on to a statement calling for the decriminalization of homosexuality in March 2011. Subsequently, a resolution presented by South Africa along with Brazil was passed in the Human Rights Council in Geneve on 17 June 2011 becoming the first U.N. resolution calling for support of gay rights. The effect of this resolution was to recognise the rights of LGBTQI persons as part and parcel of human rights. Moreover, in its 1994 decision in Toonen vs Australia, the UN Human Rights Committee – the body that interprets the International Covenant on Civil and Political Rights (ICCPR), to which Kenya is a state party – had held that laws prohibiting consensual same-sex conduct violate the rights to privacy and non-discrimination. Although these decision does not encompass the whole of the LGBTQI community, it provides an entry point for discussion on the rights of other related persons like the queer who are not essentially involved in same-sex relationship.
LGBTQI+ Discrimination: A Pressing Concern in Kenya
Over the last year or so, the acronym LGBTI has developed and added two letters to its acronyms, i.e., Q and A to indicate Queer and Asexual persons. Additionally, owing to the difficulties encountered by some groups of persons in identifying their sexual orientation, the (+) has been added to indicate persons that would otherwise not be covered in the acronym. That creates the impression that in the future, there may be an addition of another category of persons, who do not identify themselves within the acronym LGBTQI.
Incidences of discrimination arising out of identifying with the LGBTQI community abound the world over and constitute a growing and pressing concern for human rights defenders and activists. Kenya is not an exception. In his speech on 25 September 2018, Antonio Guterres, UN Secretary General, remarked thus:
“So long as people face criminalization, bias and violence based on their sexual orientation, gender identity and sex characteristics, we must redouble our efforts to end these violations”.UN Secretary-General António Guterres
The concern arises out the fact that Kenya still has laws criminalising same sex relationships, namely Articles 162, 163 and 165 of the Penal Code.. The fact that the wording of the penal laws refers to such relations as “unnatural” and “against the order of nature” exacerbates the matter. Those laws have been referred to, by some commentators, as both colonial and draconian.
The Constitutional Division of the High Court of Kenya, the one tasked with original jurisdiction in interpretation of the constitution had an opportunity to set the stage for liberalisation for the LGBTQI community in 2019, when it was faced with a petition that challenged the constitutionality of the laws criminalising same sex relationships. The petitioners challenged the criminalization of same-sex conduct under articles 162 and 165 of the Penal Code, on the grounds that it violated the rights to equality, non-discrimination, human dignity, security, privacy, and health, all protected under Kenya’s constitution. In its decision on May 24, 2019, the court upheld laws criminalizing homosexual acts between consenting adults, a decision which was described by Human Rights Watch, a human rights watch dog in the country, as a step backward in the progress Kenya has made toward equality in recent years.
Although rarely enforced, with only a few prosecutions arising therefrom over the last decade, the laws constitute discrimination against the LGBTQI community in Kenya While several other reasons could potentially influence the personal decision of publicly speaking about one own’s sexual orientation, these laws are probably one of the reasons why some members of the community do not publicly declare their sexual orientation and are afraid to do so. Article 162 for instance punishes “carnal knowledge against the order of nature” with up to 14 years in prison, while article 165 makes “indecent practices between males” liable to up to five years in prison and the consequences of these provisions is to deny persons the freedom to associate with whoever they choose to.
Towards a Fearless Future: Advances for LGBTQI+ Equality
What then, it may be asked is the way towards ending the apparent discrimination and forging equality in a way that does not isolate the LGBTQI+ community in Kenya? In my view, a number of steps ought to be taken.
From the onset, Kenya ought to decriminalize same sex relations. The continued presence of laws prohibiting same sex relations in the penal laws is retrogressive. At the worst, it serves to discourage the LGBTQI community from identifying as such for fear of being targeted by authorities, in addition to occasioning untold stigma to them. That is what a fearless future would ideally look like as it would increase social acceptance. Most people like Sheila above are afraid to identify themselves by their sexual orientation for fear that they will not be accepted in their societies. Although the country has a thriving civil society sector, including LGBTQI+ organisations that have been at the forefront of the cause for many years, social acceptance remains low, with enduring risks and vulnerability for people of the community.
Additionally, granting recognition of same-sex relationships, and ensuring that transgender individuals are able to obtain identity documents that reflect their preferred gender without abusive requirements is key to a fearless future. There is still the notion that in Kenya, a persons must be identified by this or that gender. In this regard though, Kenya has moved a step forward as the High Court of Kenya ordered that a transgender activist, Audrey Mbugua, be issued with an examinations certificate which does not include the gender.
Adopting laws banning discrimination based on sexual orientation would contribute hugely towards an equal society, as it would then allow LGBTQI persons to only then effectively make use of the right to freedom of expression, assembly and peaceful demonstrations. Finally, Kenya ought to respect and abide by its internal obligations under the various international human rights instruments it has ratified.
Happy Pride Month.
Kilili Nthiw’a is a Sports Lawyer, Reader in European Union Law, Independent Researcher and a DAAD Legal Scholar at the Tanzanian-German Center for Eastern African Legal Studies at the University of Dar es Salaam.
 Article 1, UN Universal Declaration of Human Rights.
 Ann Nyathira, ‘Who killed our daughter? Sheila Lumumba’s parents speak on their daughter’s murder’ (Citizen Digital, 08 June 2022) https://www.citizen.digital/news/who-killed-our-daughter-sheila-lumumbas-parents-speak-on-their-daughters-murder-n299724 accessed 28 June 2022.
 ‘Transgender Lady Found Murdered in Westlands’ (Opera News, 2021) https://ke.opera.news/ke/en/society/d5734a05e8024c059157d2a3c6650045 accessed 28 June 2022.
 Preamble of the Constitution of Kenya, 2010
 United Nations Office for the High Commissioner for Human Rights (OHCHR). (2011). Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation. Geneva, Switzerland: United Nations.
 “Historic decision: Council passes first-ever resolution on sexual orientation and gender identity” (Internal Service for Human Rights, 17 June 2011) https://ishr.ch/latest-updates/historic-decision-council-passes-first-ever-resolution-sexual-orientation-gender-identity/ accessed 30 June 2022.
 Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)
 “Message to Group Tackling Hate Speech, Secretary-General Affirms United Nations Support for Lesbian, Gay, Bisexual, Transgender, Intersex Rights” https://www.un.org/press/en/2019/sgsm19762.doc.htm accessed 28 June 2022.
 Penal Code, Cap 63, Laws of Kenya
 ‘Kenya: Court Upholds Archaic Anti-Homosexuality Laws’ (Human Rights Watch, 24 May 2019) https://www.hrw.org/news/2019/05/24/kenya-court-upholds-archaic-anti-homosexuality-laws accessed 28 June 2022.