CIVICUS speaks about LGBTQI+ rights in Kenya and the criminalisation of activism with Ivy Werimba, Communications and Advocacy Officer at galck+.
galck+ is a national coalition of Kenyan LGBTQI+ organisations advocating for issues related to sexual orientation, gender identity and gender expression and representing LGBTQI+ voices across the country.
How significant is the recent Supreme Court ruling in favour of allowing the National Gay and Lesbian Human Rights Commission (NGLHRC) to register? Has it brought any anti-rights backlash?
The Supreme Court’s decision to uphold the lower court rulings was highly significant. This decision sets an important precedent for future cases involving discrimination against marginalised communities and underscores the importance of the judiciary in upholding the rule of law and protecting human rights. It was the first of its kind by the Supreme Court of Kenya. We applaud their decision to uphold the Constitution.
There has been a lot of backlash from various societal leaders and there is now a Family Protection Bill that’s been created and awaiting being gazetted. This bill, which closely resembles the anti-homosexuality bills of Ghana, Nigeria and Uganda, has given fodder to the opposition, which is rallying support for it online and continuing to spread misinformation and disinformation by tying it to other issues that political leaders refuse to address, such as the poor economy, the rise in teenage pregnancies and alcohol abuse, election violence and election violations, widespread corruption and unrest in secondary schools.
The NGLHRC fought for 10 years to register because its name contained the words ‘gay’ and ‘lesbian’. Has galck+ faced similar challenges?
No, our struggle has been different. As a coalition made up of 18 member organisations catering to people of diverse sexual orientation, gender identity, gender expression and sex characteristics, we changed our name in 2022. We are now galck+ and our name is no longer an abbreviation. galck+ reflects the growth and intersectionality we have witnessed in the Kenyan LGBTQI+ movement, with inclusion and diversity at the heart of what we do. Our updated resolve is to create a space that doesn’t feel segmented since our fight for freedom and love is the same regardless of what makes us different from each other.
How do you manage to work in a context where being LGBTQI+ is illegal?
Our work in Kenya is not hindered by the illegality of being openly LGBTQI+. Although Kenya is a patriarchal, conservative and sexist state, the perception of a person’s gender or sexuality is what gets people in trouble. Through its existence and work, the LGBTQI+ community in Kenya continues to challenge conformity to societal norms that expect men to be courageous and women to be homemakers.
There have been significant milestones in establishing laws and policies that support gender equality and social inclusion. However, several factors – including limited resources, weak links among ministries and between the national and county levels, negative pervasive norms and attitudes about inclusion – hinder the effective implementation of laws and policies.
Despite all these tribulations, we use our work and our spaces to push back on these norms and celebrate the limited but important progress made on the rights of LGBTQI+ people in Kenya over the last 10 years. This has largely been obtained through victories in court, where Kenyan activists have challenged criminalising provisions and the treatment of LGBTQI+ people and organisations. This includes a case that established that the use of forced anal exams is illegal, a case that upheld the right of LGBTQI+ people to form and register organisations and a case that upheld the right to change gender on legal documents. The Family Protection Bill threatens to destroy all this progress and so our work continues to be a reminder that the freedoms we fight for are for all Kenyans, and not only for the LGBTQI+ community.
Do prohibitions of ‘same-sex behaviour’ apply in practice?
Violence and discrimination against LGBTQI+ people in Kenya are a harsh reality. Despite claims that sexual orientation and gender identity are non-issues, LGBTQI+ people in Kenya experience stigma, discrimination, physical and verbal abuse, assault, harassment, eviction from their homes, loss of their jobs, suspension or expulsion from school and many other rights violations that significantly affect their wellbeing and quality of life.
The Penal Code’s sections 162(a), 162(c) and 165 criminalise sexual activities that are perceived to be against the ‘order of nature’. While these sections apply to all Kenyans, they are selectively used to criminalise same-sex relationships. The ambiguous language used in these sections also makes it difficult to define ‘gross indecency’ since it criminalises even innocent actions like hugging or holding hands between people of the same sex. These laws also affect the transgender and intersex communities. The misguided narrative that limits people’s understanding of the difference between sexual orientation and gender identity leads many Kenyans to assume that transgender and intersex people are homosexual or bisexual.
Although few people have been charged under these laws, they are often used to justify violence and discrimination against LGBTQI+ people, creating a perception that they are criminals. This is a perception that subsets of the state and religious institutions advance to further perpetuate human rights violations and acts of violence.
In other words, there is a connection between legal prohibitions and violence against LGBTQI+ people, even if the laws are not consistently applied. This hostility is underpinned by discriminatory laws, including the law that criminalises same-sex activities and other laws used by the state to target LGBTQI+ people.
These laws also create a culture of fear and secrecy among LGBTQI+ people, making them vulnerable to harassment, assault and other forms of violence. In addition, the inconsistent application of these laws can lead to arbitrary arrests and prosecution, including under laws criminalising ‘loitering’, ‘solicitation’ and ‘impersonation’, to extort money or sex from LGBTQI+ people, or to deny services to LGBTQI+ survivors of violence.
How are LGBTQI+ organisations in Kenya working to change this?
LGBTQ+ organisations in Kenya are working to change discriminatory laws and social norms by engaging in various advocacy and awareness-raising campaigns, providing legal aid, sharing security directives with our constituents and offering healthcare services to the LGBTQI+ community. These organisations are also working to create safe spaces for LGBTQI+ people to express themselves, network and access information.
Some of the main issues on the LGBTQI+ agenda in Kenya include the repeal of discriminatory laws such as Penal Code sections 162(a), 162(c) and 165 and the promotion of laws and policies that are intersectional for LGBTQI+ people and organisations, including the Employment Act (2007), which recognises the rights of employees to basic conditions of employment, the Sexual Offences Act (2006), which outlaws all forms of sexual violence, and the National Gender and Equality Commission Act (2011), which spells out the National Gender Equality Commission’s function, which is to promote, monitor and facilitate gender equality and freedom from discrimination in the country’s laws at the national and county levels.
Other issues include ending violence and discrimination against LGBTQI+ people, addressing the challenges faced by transgender people, and promoting education and awareness on issues affecting the LGBTQ+ community.
Do you see your struggle as part of a bigger regional or global struggle?
Yes, the Kenyan LGBTQI+ movement is part of the regional and global struggle to achieve various goals ratified in regional and international agreements such as Resolution 275 of the African Commission on Human and Peoples’ Rights – on protecting people against violence and other human rights violations on the basis of sexual orientation and gender identity – and reducing inequalities, as laid out in the Sustainable Development Goals.
The Kenyan government has adopted legal and policy frameworks aimed at promoting gender equality and reducing discrimination based on sexual orientation and gender identity. Such initiatives include the Kenya Vision 2030, which highlights the government’s commitment to reducing income inequality through economic growth, job creation and social safety nets. In addition, Kenya has adopted several legal and policy frameworks aimed at promoting gender equality and reducing discrimination based on sexual orientation and gender identity.
However, significant inequalities still exist, particularly in the wake of the pro-religious government that has been openly homophobic, inciting violence that threatens the lives of queer people. There is a lot of uncertainty regarding the new government’s impact on LGBTQI+ organising and funding, with concerns about the evangelisation of the state and state functions being used to dictate and define morality.
Despite these challenges, the Kenyan LGBTQI+ movement remains resilient. We are mobilising together and collaborating with LGBTQI+ organisations in other countries in the region, including Nigeria, South Africa and Uganda, on issues such as the anti-homosexuality bills of Ghana, Nigeria and Uganda, that are now spreading to Kenya, Malawi, Zambia and many other African countries, and exchanging best practices.
To continue doing this, we need various forms of support, including in raising awareness around the issues brought about by state and non-state-sponsored homophobia and flexible funding to respond to rising insecurity and mental health issues. We need our allies working on other thematic areas to highlight intersectionalities, showing how these regressive laws will affect sexual health and reproductive rights, children’s rights, the economy and more.
Civic space in Kenya is rated ‘obstructed’ by the CIVICUS Monitor.
Get in touch with galck+ through its website or its Facebook page, and follow @Galck_ke on Twitter.
