The ruling in a constitutional case challenging laws criminalising gay sex has been postponed to 24 May 2019.
Justice Mwita said the volume of documents, the inability of the three judges to meet and the demands of other cases were behind the delay in their ruling on the lawfulness of Sections 162, 163 and 165 of the Kenyan Penal Code.
The judgment, which had been scheduled for 9am this morning (22 February, 2019) was much anticipated, as indicated by the packed courtroom of Kenyan LGBT activists and community members, lawyers, international and national media.
Tweeting from court today, the National Gay and Lesbian Human Rights Commission (NGLHRC), which has been supporting the case, said, “To say we are disappointed would be an understatement.”
The Human Dignity Trust’s Director, Téa Braun, who was also in the Nairobi court this morning, said, “This is tremendously disappointing, particularly for the committed and tenacious activists and lawyers in Kenya who have been working towards this moment for several years. Nonetheless, we must put our trust in the Kenyan justice system. This is a pivotal case, and ultimately the most important thing is a sound and reasoned judgment that will free LGBT Kenyans from discrimination and persecution.”
Sections 162, 163 and 165 of the Penal Code, which were introduced into Kenyan lawbooks by British colonisers over 100 years ago, made it a crime punishable by up to 14 years in prison to ‘have carnal knowledge against the order of nature,’ and for consenting adult men to engage in ‘gross indecency’ with each other which brought a 5-year prison sentence.
These laws – still on the books across two thirds of the Commonwealth thanks to British colonisation and the failure of decades of independent governments to repeal them – are widely used to stigmatise, harass, discriminate against, arrest and detain LGBT people, and in many countries they have led to violence, including sexual violence, against the LGBT community.
The case was filed in 2016 and argued by Senior Counsel Paul Muite and Advocate Sande Ligunya in February 2018. It was heard alongside a similar petition brought forward subsequently by the Gay and Lesbian Coalition of Kenya and Nyanza Rift Valley and Western Kenya LGBT coalition.