Kenya’s high court rules out forced anal testing

March 28, 2018

Hivos welcomes the decision of the Court of Appeal of Kenya which declared forced anal testing as a way of determining sexual orientation unlawful, torturous and a gross violation of people’s right to privacy.

Hivos also congratulates the National Gay and Lesbians Human Rights Commission (NGHRC) in Kenya who against many odds stood for what is right and represented two accused men in court. The men were arrested in Kwale County one year ago on suspicion that they were engaging in homosexual acts. They were subjected to forced anal examinations and HIV testing under a magistrate’s order to determine if they had engaged in consensual sexual acts in private.   

“The court ruling is a big milestone in the defense of the rights of lesbian women, gay men, bisexuals, transgender people, and people with an intersex condition (LGBTI)”, said Nyambura Gathumbi, Hivos East Africa’s Programme Manager, Sexual Rights and Diversity.

Hivos believes in strategic public interest litigation as a multi-pronged advocacy strategy especially on issues of inequality and the rights of the most marginalized communities. A case in point are the two successes of our partner organization Transgender Education and Advocacy (TEA) that successfully challenged discrimination against transgender persons leading to TEA becoming the first officially registered transgender organization in Kenya. Secondly, a court ruling that allowed for legal changes of one’s name and gender-marker in official documents. These were major milestones in achieving equal enjoyment of human rights and fundamental freedoms by transgender citizens in Kenya. These outcomes confirmed that litigation can make a difference in affirming the rights of the aggrieved and marginalized. We hold that this win will not only protect individuals under threat of similar treatment but will also influence broader change of laws, policy and practice in relation to sexual minorities.

Implementation of progressive rulings is key in changing policy and practice. Therefore Hivos is committed  to working with different organizations and individuals in realizing this goal and challenging  laws and practices that undermine human rights and fundamental freedoms.