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Group seeks to quash parts of Penal Code outlawing gay sex

Group moved to court to decriminalise section 162 and 165 of the Penal Code. FILE PHOTO | NMG
Group moved to court to decriminalise section 162 and 165 of the Penal Code. FILE PHOTO | NMG 

A group seeking to quash some provisions of the Penal Code that make it illegal for consensual gay and lesbian sex will call expert witnesses to support their case.

Appearing before a Bench of three judges yesterday, Senior Counsel Paul Muite said they would call a psychiatrist to explain sexual orientation and why the State should not regulate matters of intimacy.

Mr Muite said the experts would table reports to demonstrate biological and even social conditions that influence one’s sexual orientation.

In the case, Eric Gitari moved to court to decriminalise section 162 and 165 of the Penal Code. He said the sections are discriminatory and contravene various provisions of the Constitution such as right to equality, freedom from discrimination, human dignity, freedom and security of the person and right to privacy.

Section 162 reads: “Any person who — (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for 14 years.

Mr Gitari says in the petition that the petition has nothing to do with same-sex marriage, does not seek the legislation of same-sex marriage and will not, if successful, have the effect of mandating or requiring Kenya to recognise same-sex marriage.

Justices Roselyn Aburili, Chacha Mwita and John Mativo at the same time consolidated the case with another petition filed by John Mathenge and four others, who are seeking the same prayers.

Mr Mathenge is represented by lawyer Willis Otieno.

Kenya Christian Professional Forum through lawyer Charles Kanjama, who is opposing the case, said they would also call two witnesses — a psychiatrist and sociologist — to give a divergent opinion. The forum says the Penal Code is well within the confines of the law and an expression of the will of the Kenyan people through their MPs.

“The petition only concerns the criminalisation and severe punishment under the criminal law of a whole section of Kenyan society on account of the fundamental and innate characteristic of the sexual orientation,” Mr Muite said.

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