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    Standing with the Kenyan LGBTIQ Community

    By Stuart Gaffney and John Lewis–

    “To say we are disappointed would be an understatement.” So read the tweet from a leading Kenyan LGBTIQ rights group minutes after a Kenyan court announced last week that it was delaying until late May issuance of its much-anticipated ruling about the constitutionality of Kenya’s law criminalizing same-sex sexual activity.

    Expectations for a favorable ruling in February had been high prior to the announcement. The Nairobi News reported that many LGBTIQ people turned out to be present in the courtroom when the hoped-for ruling was to have been announced. They “were all dolled up with makeup and wigs as dapper partners suited up and wore bow ties for the occasion.” People hugged each other, and couples held hands as they entered the courtroom. Author and activist Denis Nzioka tweeted: “Splash of color, fierceness, and beauty as LGBTIQ members showed up” for court.

    At issue in the case is the constitutionality of Sections 162 and 165 of the Kenyan Penal Code, which subject LGBTIQ Kenyans to a 14-year prison term for penetrative sexual activity and gay men to 5 years in prison for other sexual activity—even in the privacy of their own homes.

    According to Reuters, the Kenyan government arrested 534 LGBTIQ people under these laws from 2013 to 2017. The effect of the law’s sanctioning discrimination, hostility and violence against LGBTIQ Kenyans is far wider. One person described on Twitter: “What irks me is that homophobes will threaten my life and still get to go home to their families. Meanwhile my family & friends will worry for days that something bad will happen to me … .”

    Kenyan LGBTIQ activists emphasize how the British government originally imposed the law on Kenya in 1930 during its colonial rule of the country. Author Shailja Patel tweeted before she entered the courtroom last week: “We’re here. Ready to overturn 89 years of colonial homophobia.” The British modeled the Kenyan law on a similar law it enacted in India back in 1860. Similar British colonial era criminal statutes became law in many of its colonies, including the present day African countries of Botswana, The Gambia, Ghana, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia and Zimbabwe.

    The post-colonial Kenyan government has retained the law, and President Uhuru Kenyatta last year stated that homosexuality was currently “not acceptable” to “the people of Kenya” and “not an issue of human rights.” But the Kenyan LGBITQ community continues to fight back, by underscoring the law’s colonial roots. Writer Magunga JaKaruoth tweeted to the law’s proponents: “You inherited cruel laws from colonialists who went back to their country and changed them, yet you still cling on to them.”

    In the face of such adversity, many LGBTIQ Kenyans have forcefully and eloquently stood up for love, equality and personal dignity and security. One activist explained on television: “I am someone’s daughter; I am loved from where I come from as a Lesbian, and I would want my fellow Kenyans to love us as we are because (we are) just like any other Kenyan.” Another person tweeted: “I am queer. I am femme. I am Kenyan. I am everything and yet I am made to feel like nothing. My love is not a phase. My love is not a sin. My love does not make me less of a human.”

    Another activist spoke of the hypocrisy he perceived on the part of some Christians: “Whenever gay rights are brought up, every [C]hristian that drinks, smokes, fornicates, steals, covets, curses and uses God’s name in vain, is suddenly concerned with what the Bible says and permits.” Other advocates spoke of how sections 162 and 165 interfere with “providing healthcare services to the LGBTIQ community” and the country’s “achievement (of) global health targets outlined” by the government.

    The personal toll that Sections 162 and 165 exact on all LGBTIQ Kenyans cannot be overstated. As one person put it: “[W]e are tired of the stigma, the blackmail, the threats, the struggle to live.” Sections 162 and 165 mean “you’re either out and scared for your life” or you’re “quiet and suffocating.”

    Last year, the Indian Supreme Court overturned that nation’s anti-gay criminal statute dating back to 1860, holding that criminalizing a person’s “right to love” is “profoundly cruel and inhumane.” This month, a court in Botswana will hear a challenge to its similar law. The forthcoming ruling from the Kenyan court in May will be subject to appeal to an intermediate appellate court and the Kenyan Supreme Court, but its impact may ultimately be felt across the continent. As these cases unfold and activism and public education continue, activist writer Giramata wrote on Twitter:

    “To my queer Kenyan friends,
    Whose work I will never take for granted
    Whose organizing will never go unnoticed
    Whose love for community fuels me
    Whose love of self holds me
    I stand with you,
    today and always!”

    So do we.

    John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.