Kenyan Court Upholds the Use of Anal Test for Men Suspected of Being Gay

The lesbian, gay, bisexual and transgender (LGBT) community has suffered a setback in the East African country of Kenya following a ruling by a high court: It is legal for law enforcement officials to order anal examinations for men suspected of being gay.

Homosexual acts are illegal in Kenya. It is punishable by the criminal code of the country, carrying a 14 year prison sentence.

In 2015, the Kenyan police arrested two men suspected of being gay at a bar near the country’s coastal town of Mombasa. The police subsequently obtained a court order for the two to have an anal examination by medics to determine whether they are gay or not.

The two men signed the consent forms for the anal examination, which also includes a HIV test. However, the men later claimed that they signed the consent forms under duress.

With the help of the Kenyan National Gay and Lesbian Human Rights Commission, the two men filed a petition asking the high court to declare the anal examination unconstitutional. They also asked the court to throw out evidence collected from them, because it is discrimination and violation of their privacy. The Kenyan National Gay and Lesbian Human Rights Commission is an advocacy group fighting for the rights of the LGBT community in the country.

But the presiding judge, Justice Anyara Emukule of the Mombasa High Court ruled against the men, saying that it was clear based on the evidence presented in court that the men willingly and voluntarily consented to the examination.

“There was no other way evidence could have been obtained. I find no violation of human dignity, right to privacy and right to freedom of the petitioners,” Justice Emikule said in his ruling.

Since the ruling, gay activists have expressed their disappointment. The Executive Director of the National Gay and Lesbian Human Rights Commission, Eric Gitari said: “This ruling is a devastating precedent that has now heightened the risk and fear of similar anal testing on many lesbian, gay, bisexual, transgender, intersex and queer persons in Kenya. Suspecting someone of being gay should not be grounds for stripping them of their dignity and their fundamental rights.”

According to Human Rights Watch, the LGBT community in Kenya recently has been expressing safety concerns daily. The rights group detailed six incidents since 2008, where it is alleged that LGBT people were threatened with death messages or physical abuses.

In many African countries, homosexual sex acts are illegal. Some years back, politicians in Uganda, a neighboring country of Kenya tried to impose the death penalty for homosexuals. However, the bill was not passed into law due to international outrage.

During a visit to Kenya in 2015 by the United States President Barack Obama, he called for decriminalization of the law against homosexuals in the country, saying that treating people differently erodes the freedom they enjoy.

But the Kenyan President, Uhuru Kenyatta replied to Mr Obama instantly, that while the United States and Kenya agree on many issues, there are some that the two countries cannot agree on due to the differences in cultural beliefs between the two countries.

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