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De-Criminalization in Kenya 'Will Fail' 'Untimely' Part 2

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Pursue inclusive and comprehensive litigation including non-crimialized ones

By Eric Gitari

While the ammo is loading, this paper is not asking the movement to sit back and sip colored drinks over some Lady Gaga party.  We must use the judicial institution to incrementally litigate using the citizenship card. What does this jargon entail? There are other related issues, which are more open to immediate litigation challenge. Litigation on privacy, equality, health, physical and bodily integrity can be incrementally developed to challenge the laws criminalizing same sex sexual practices at a later stage.  Below are some of the many areas of litigation we can use to build incremental jurisprudence to achieve decrim.

Failure to protect (attacks by third parties): This relates to cases where LGBTI persons or those perceived to be, have been attacked and the state has failed to investigate, prosecute and punish the perpetrators.  Such cases would make a link between the attacks by third parties and state-sponsored homophobia in order to hold the state accountable. There have been instances where LGBTI persons have been subjected to violence and there has not been prosecution of those involved. Mtwapa would be a case in point, the KHRC report would also offer further complainants on the same

Registration of organizations doing LGBTI advocacy work:  There are records by a few groups whose registration has been either denied or unreasonably delayed as their existence is viewed as being in direct contravention of the criminal laws that criminalize same sex sexual practices or because they work and promote the welfare of MARPS.  Challenging the failure to register in court will be easier as the arguments are much simpler to make and difficult to dismiss based on the catch all ‘moral grounds’

Failure to respect (actions by state agents): this takes focus on the violations perpetrated by state agents, the police in particular, who target and harass LGBTI persons. These will include house raids, illegal body searches or patting in the street, instances where people are picked up from the street on a charge of public indecency, or carnal knowledge against the order of nature but in reality they are never charged or are later charged with trumped up charges. The purpose of these arrests is to illicit bribes from the community. The idea here would be to sue the state for malicious arrests and harassments and allege the violation of rights including, equal protection of the law, privacy and dignity among others. We must build a case on the profiling and subsequent harassment of LGBTI person by police, the Trans persons and effeminate gay men being the most targeted here.

Transgenderism:  The law in Kenya does not accord rights to people who are transgendered. There is a deliberate and systematic by the government to issue official documents to trans persons because government documents require one to indicate whether they are male or female. There is also failure to make provision for people who have had sex change operations. Transgenderism is not criminal in Kenya but the police arrest people on the basis of their dressing which is considered a transgerasion of gender norms. Litigating in this area would have the utility of enhancing public knowledge on transgenderism and deterring harassment of tans persons by police.

There are many other areas of litigation and causes of action to engage the courts that have an LGBTI theme. The utility of incremental litigation vis a vis a direct constitutional petition for decrim are many and varied; such cases are easy to litigate and require a lesser body of evidence and overtures with government, incremental litigation has an urgent action value to redress violations where the complainant would suffer greater and irreparable harm in the absence of judicial intervention. Incremental litigation builds a body of citations, a water shed of authorities to draw from during a decrim suit. It raises public awareness on the principles of equality and how it applies without distinction. Incremental litigation stouts the movement, it builds it, strengthens it and has a double utility of civic education among the LGBTI persons. An incremental approach has less traction from conservative forces and homophobes since it seeks not to directly change any significant law as decrim would.

At the risk of sounding alarm over the consequences of weak strategies, let us find unity in pursuing litigation that is more representative of all groups (including the non criminalized ones) and forge a stronger struggle towards realizing equality. As equal taxpaying citizens, let us now aggressively use an institution we pay for to realize our rights incrementally.

 

*Eric Gitari is a law graduate from the University of Nairobi. He has worked previously as Program Associate, LGBT Program at the Kenya Human Rights Commission (KHRC). He is the Programme Manager at the Hebrew Immigrant Aid Society, Kenya. He can be reached via [email protected]

 

 

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