The High Court of Kenya on 24th May, 2019 declined to declare sections 162 (a) (c) and 165 of the Penal Code unconstitutional. The two provisions criminalized same sex liaisons and the petitioners had gone to court seeking to have them declared contrary to several articles of the Constitution as well as being vague and uncertain.
The court in its decision emphasized on the importance of adopting a holistic view of the Constitution and as much as possible giving words in our laws their natural and ordinary meaning.
The court found the sections were not unconstitutional for vagueness and uncertainty. The fact that they did not define ‘unnatural offenses’ and ‘against the order of nature’ did not make the provisions vague or ambiguous since these terms were not only clearly defined in several court decisions and law dictionaries but also disclosed offenses known in law.
It was also held that there was no discrimination in the laws as the laws applied to both heterosexuals and homosexuals; no tangible evidence was adduced to show evidence of alleged discrimination. The court maintained that the two sections employed the phrases “any person” and “any man” therefore no particular group of persons was targeted.
Similarly; the Court found no evidence was brought to show how the petitioners’ constitutional right to health may have been violated.
The court also ran down a list of countries whose courts decriminalized the same kind of provisions as were in issue in this case but noted that most of those decisions were never unanimous and the world was still divided over the issue.
The court maintained that if the Kenyan people had intended for same sex unions to be allowed by our laws; they would have done so without offending Article 45 (2) of the Constitution which along with the Marriage Act Number 4 of 2014; only allowed marriages between man and woman.
The judgment can be found here.
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