KELIN joins case seeking decriminalization of consensual sex by members of the same sex

The High Court in Nairobi has allowed KELIN to join a case challenging the constitutionality of the provision of Section 162 and 165 of the Penal Code as an Interested Party.

The Petitioners in this case (PT 234 of 2016) have filed the Petition claiming that the provisions of Section 162 and 165 of the Penal Code that establishes an unnatural offence of having sex against the order of nature or permitting a male person to have sex with him or her against the order of nature criminalizes consensual private sexual acts of two adults who are of the same sex. They argue that these provisions are unconstitutional for being discriminatory and for violating the right to privacy and human dignity.

KELIN will make submissions to the Court on the implication of the implementation of the provisions on the right to access health care by persons who engage in the same sex sexual acts. It will do so by providing information that will guide the Court on:

  • The lived experiences of stigma, discriminatory practices and human rights abuses arising out of the implementation of the provisions.
  • The challenges faced by health care providers in providing health services including HIV prevention and treatment as a result of the arbitrary implementation of the provisions.
  • The inability of those targeted by section 162 and 165 of the Penal Code to live a dignified and healthy productive life.
  • The international public health and human right standards including the sexual rights of individuals engaging in consensual same sex activity.

The three-judge bench that has been constituted by the Chief Justice to hear the case further directed that this case be consolidated with PT 150 of 2016 that challenges a similar provision of the law. The Court will hear both cases on 22 and 23 February 2018. KELIN has until 2 February 2018 to file its replying affidavit and submissions.

To contribute to the discussion and for live updates follow KELIN on our social media platforms: Twitter: @KELINkenya and using hashtag #Justice2Health

Court Documents

For more information contact:

Carolene Kituku

Advocate and Human Rights Counsel

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

4th Floor, Somak Building, Mombasa Road Tel +254202515790;

Cell +254720467396;

Email: ckituku@kelinkenya.org