In Historic Decision, Kenyan Court Bans Anti-Gay Practice Compared to Rape and Torture

A historic ruling in a Kenyan appeals court could pave the way for future LGBTQ rights victories in the East African country.

The Court of Appeals ruled on Thursday that forced anal examinations are unconstitutional, breaking with a lower court verdict in the case of two men accused of homosexuality. After being arrested in February 2015, Caleb Omar Idris and George Maina Njeri were subjected to the testswhich are designed to “prove” that the accused has engaged in same-sex activity.

Speaking on behalf of the appeals court, Judge Alnashir Visram claimed the evidence from that prosecution “cannot be allowed.” Visram said the procedure violated the human rights of Idris and Njeri.

“I, therefore, allow the appeal and set aside the High court decision,” he stated.

During an anal examination, men accused of homosexuality are typically forced to lie face down on an operating table while a doctor or other official examines their rectum for signs of penetration. Instruments used during the inspection often cause substantial bleeding.

During their detainment at a Mombasa hospital two years ago, security officers also made Idris and Njeri take HIV tests.

The National Gay and Lesbian Human Rights Commission (NGLHRC), the advocacy group which filed a lawsuit on behalf of the two men, celebrated the favorable verdict in a statement provided to INTO.

“With this ruling, the judges are saying that we all deserve to be treated with dignity and afforded our basic rights,” said Head of Legal Affairs Njeri Gateru.

OutRight International Executive Director Jessica Stern claimed in a press release that anal exams are akin to “torture.” Numerous international groups have come to the same conclusion, condemning the discredited practice based on outdated 19th century science. The Committee Against Torture and United Nations have both called for the procedure to be banned, along with as the Kenya Medical Association.

“No one should ever be exposed to such a degrading and dehumanizing experience,” Stern said. “The Kenyan Courts ruled in favor of international law and in favor of human dignity. “Other countries should follow suit and put an end to this discredited practice.”

Anal exams have been shown to be ineffective at proving whether an individual has engaged in sodomy and virtually pointless. Critics have pointed out that there are a number of reasons that the accused may have a loose rectum. These alternatives include diarrhea, Irritable Bowel Syndrome (IBS), or even Alzheimer’s Disease.

Yet at least eight countries continue to use anal exams against their gay and bisexual citizens, including Cameroon, Egypt, and Turkmenistan.

Lebanon has distanced itself from the anti-LGBTQ practice in recent years, while Tunisia announced in 2017 it would no longer conduct them following recommendations from the United Nations. But as INTO reported last year, it may take years before the procedure is fully phased out in the North African country.

Advocates hope that the Kenyan ruling, however, is a harbinger of LGBTQ progress to come.

In partnership with the Gay and Lesbian Coalition of Kenya (GALCK) and the Nyanza Rift Valley & Western Kenya Network (NYARWEK), NGLHRC filed a lawsuit in 2016 to overturn the country’s criminalization of sodomy. Same-sex relations are outlawed under sections 162(a) and (c) and 165 of the Kenyan Penal Code, and convictions for homosexuality may result in five to 14 years behind bars.

An estimated 600 LGBTQ people in Kenya were targeted by the anti-sodomy law between 2010 and 2014, according to federal data.

While the courts reach a final verdict on this pivotal case, advocates believe that this week’s ruling is an affirmation of the worth of queer and transgender people in Kenya. In a statement, Neela Ghoshal, senior LGBTQ rights researcher at Human Rights Watch, claimed the decision is of “tremendous significance.”

“The ruling affirms the dignity of the two Kenyan men who were subjected to these horrific exams,” she said. “It reinforces the understanding that the constitution applies to all Kenyans, regardless of their sexual orientation or gender identity.”

Photo byTONY KARUMBA/AFP/Getty Images