How long can such discriminatory, archaic perspectives prevail?

Published 11th May 2018

The film, Rafiki, set to feature at the Cannes Film Festival this week, is already making waves, not only because it is the first Kenyan film to make it to the prestigious and exclusive Cannes Film Festival, but also because it has been banned in Kenya.

Rafiki- meaning “friend” in Kiswahili, features a love story between two female leads, a story line that has attracted the censure of the Kenyan Film Classification Board (KFBC) who banned the film on 27 April. The banning of the movie highlights the extent of the discrimination based on sexual orientation and the plight of the gay and lesbian people in Kenya.

KFCB, banned the distribution, exhibition or broadcast of the movie due to its “ homosexual theme and clear intent to promote lesbianism in Kenya contrary to the law.” The KFBC went on to say that anyone found in possession of the film would be in “breach of the law”. Citing that Kenyan values, morals and cultural beliefs were contrary to homosexuality, the KFBC made their disdain for the film emphatically clear in their statement.

This stance goes all the way to the President’s office as President Uhuru Kenyatta, who was interviewed last month on CNN by Christiane Amanpour unequivocally confirmed that the topic of homosexuality was of “no importance to the people of Kenya” and that is was not “an issue of human rights” but more about “culture”. Whilst he could affirm that no Kenyan should be abused or violated in any way he stood firmly in support of the homophobic stance he deemed to be the opinion of “99 percent” of the Kenyan population.

Kenya’s laws against homosexuality are essentially the remanents of British colonial rule. Section 162 and 165 of the Kenyan Penal Code criminalises “carnal knowledge against the order of nature” and this has been interpreted and understood to proscribe and forbid homosexuality. The maximum penalty for engaging in same sex relations is 14 years imprisonment.

Whilst there are many dubious colonial legal exports that still confuse the legal landscape in many African countries and remain unchanged by African legislators and policy makers- criminalising private, consensual same sex conduct ranks as one of the most destructive in a world where the fight for equality for all continues.

In 2015, two men were arrested under suspicion that they were engaging in same sex relations and “indecent acts between adults” which is an offense in terms of Kenya’s Sexual Offences Act. The two men were forced to have anal examinations, as the authorities were of the opinion that this would provide evidence of their alleged sexual conduct. The two men were also subjected to HIV and Hepatitis B tests. This cruel and degrading treatment became the subject of litigation as the National Gay and Lesbian Human Rights Commission (NGLHRC) and the two men challenged the constitutionality of the forced examinations and testing. The Kenyan Mombasa High Court ruled in June 2016 that the forced anal examinations and testing were constitutional.

Thankfully, the 2016 ruling was overturned earlier this year in March by the Appeals Court. The Appeals Court ruled that conducting forced anal examinations was unconstitutional. Forced anal examinations have been denounced by several international organisations including the World Medical Association which in October 2017 adopted a resolution to that effect and called for an end to the practice.

Lesbian and gay people have also been subjected to other restrictions including government agencies denying organisations that represent the Lesbian Gay Bisexual Transgender (LGBT) community registration and thus preventing them from operating in a legal manner. This was successfully challenged in court in 2015 and two organisations were allowed to register.

In addition to having to contend with the full weight of the discriminatory laws and the government’s disapproval of same sex relations, the LGBT community, in many parts of Kenya faces the wrath of neighbors and the community at large.

In 2015, Human Rights Watch, in conjunction with local Kenyan organisations interviewed 65 gay and bisexual men, lesbians, transgender women, and documented reports of community violence against them in coastal towns of Diani and Ukunda. In one incident, photos and video footage showing men engaged in same sex conduct were distributed on social media and the members of the public took it upon themselves to hunt down those depicted in the footage. Some of the men who were attacked feared reporting the attacks to the police as they felt that they would be further brutalised and castigated. Even the health workers who provide healthcare for LGBT people have also been attacked and severely criticised.

The reasons submitted for the banning of the Rafiki, clearly epitomize the attitude that seems to permeate several layers of Kenyan society. How long will such discriminatory, non-inclusive and archaic perspectives prevail?

** This article appeared in the Star Newspaper on Thursday 10 May 2018

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