Kenya's failure to drop its anti-gay laws are a huge step back – but LGBT+ people will fight on

In court in Nairobi, I sat close to a Kenyan gay man. Before the ruling, he said he felt it was a privilege to watch history being made and saw this as “the first step” towards tackling homophobia. But this time it was not to be

In a huge setback for human rights, a Kenyan court last week delivered its decision not to strike down laws that criminalise LGBT+ people and target them for discrimination and abuse.

The High Court in Nairobi opted to keep 162, 163 and 165 of Kenya’s penal code. These laws criminalise private, consensual same-sex intimacy, thereby targeting LGBT people for arrest, violence and persecution. The punishment is up to 14 years in prison.

Sitting inside the packed courtroom alongside other international observers, local lawyers, journalists from across the globe and, of course, dozens of members of Kenya’s LGBT+ community, the disappointment was palpable. While a small number of religious figures expressed their joy at the continued potential to put LGBT+ people behind bars for who they love, the persecuted LGBT+ community remained silent, dignified and – understandably – deflated that their decades-long marginalisation was to continue.

Before the ruling – which was more than an hour long and difficult to predict until the closing moments – people were waiting to celebrate having their historical shackles removed, and with good reason. While changes in public attitudes will always take time, the Kenyan court had within its control at that moment the ability lawfully to end generations of state-sanctioned intolerance, abuse, violence and stigmatisation. And it had both domestic and international law overwhelmingly on its side to do so.

The vast majority of courts that have considered this issue have held that basic fundamental rights to dignity, privacy, equality and non-discrimination are violated by these archaic laws, from as early as the first case against the United Kingdom in 1981 to the most recent Indian Supreme Court decision in 2018.

In court, I sat close to a Kenyan gay man who was not “out”. Before the ruling, he said he felt it was a privilege to watch history potentially being made and saw this as “the first step” towards tackling mainstream homophobia. Others were colourfully and beautifully self-expressed in their strong and proud LGBT+ identity.

The legal challenge, brought by Eric Gitari, former head of Nairobi-based human rights group NGLHRC, argued that the anti-LGBT+ laws violate the fundamental human rights of all Kenyans to dignity, privacy and equality among others.

There is little doubt that by reaffirming the legitimacy of discriminatory laws, the court allows individuals, families and Kenyan society at large to continue considering LGBT+ people as something less than full citizens.

As another Kenyan man sitting close to me in court put it: “I see no reason why straight people should be celebrating this decision; their rights haven’t been violated.”

I heard a woman say, “‘What more evidence do they need? Do we need to pile up the bodies so that they realise what this is really about?”

This is not hyperbole. Violence against LGBT+ people in Kenya is a real and regular problem. It is the threat of physical danger, as well as the everyday discrimination, that has led to LGBT+ Kenyans, such as gay rugby player Kenneth Macharia, to seek asylum in the UK. Meanwhile many LGBT+ people still in Kenya report violence and death threats.

This atmosphere of oppression, fear and normalised stigmatisation cannot be separated from the anti-LGBT+ laws. They are a directive from the state that LGBT+ people are criminals, and are to be treated no differently than thieves, rapists and thugs.

Kenya’s story is a global story. There are 73 jurisdictions worldwide – including 32 in Africa and 35 out of the 53 Commonwealth countries – that render consensual, adult LGBT relationships a crime.

It is no accident that such high rates of criminalisation of LGBT+ people exist across the Commonwealth; most of these discriminatory laws can be traced back to British colonisation. During the 19th and early 20th centuries, vast swathes of British law were effectively cut and pasted for Empire-controlled colonies.

Although they are all now independent states that have long shed the shackles of colonial rule, their penal codes often still include laws forbidding "carnal knowledge against the order of nature,” or “gross indecency”. These legal provisions represented the values of Victorian-era Britain, in which gay men in particular were routinely imprisoned.

While the letter of the law in Kenya only targets sexual acts, the reality is that it torments LGBT+ Kenyans simply for being who they are. In the justice system, the criminalisation of LGBT+ people provides a weapon to wield against them, aiding everything from extortion and blackmail, to beatings and rape.

By even the most modest of estimates, there are many hundreds of thousands of LGBT+ people in Kenya, who will continue to live as "criminals" in their own country. Knowing this, the hard-working and tenacious activists and lawyers behind this case are not about to stop now.

There are two levels of appeal courts, which Gitari and NGLHRC will doubtless be exploring.

So, while the ruling may have dampened their day, it has only strengthened their resolve. And it should strengthen the resolve of anyone who holds the values of diversity, tolerance, non-violence and human rights dear.

This isn’t the end of the story.

Téa Braun is the Director of Human Dignity Trust