Sifuna: Being Gay is NOT Illegal in Kenya

February 1, 2024

Nairobi senator Edwin Sifuna is renowned for ‘wiping the floor’ with his panel guests on TV. On Thursday morning, he was at Citizen TV, debating with MPs Danson Mungatana and Farah Maalim.

While trying to argue how some court decisions make no sense in Kenya, Farah Maalim mentioned a Supreme Court ruling about the right to association for the LGBTQ community.

Sifuna, in his characteristic style, informed the MP that Kenyan law does not in fact criminalize the LGBTQ community’s right to associate, challenging Maalim’s interpretation of the law.

Maalim had criticized the judiciary for what he perceived as a disregard for legal principles, particularly in relation to a High Court ruling on February 24, 2023, which recognized the LGBTQ community’s right to association after a prolonged legal struggle.

Maalim expressed his concern over the courts’ decisions, suggesting that they contradicted the penal code’s provisions.

He highlighted a specific instance where a judge affirmed the right of gay people to associate, which he equated to granting similar rights to criminals.

“In our own penal code gay is a crime, a criminal offence. It’s tantamount to say that murderers have the right to associate,” Maalim stated.

Contrarily, Sifuna pointed out that the penal code specifically criminalizes ‘unnatural offences,’ which is defined as engaging in sexual acts ‘against the order of nature,’ but does not outlaw being gay or associating as such.

He emphasized that the legal framework, including Section 162 of the Penal Code, imposes penalties for certain sexual acts but not for the state of being gay or forming associations.

“There is no law in Kenya against being gay. That law does not exist you have just created it here the penal code puts a penalty on having sexual conduct that is against the order of nature including between a man and woman,” Sifuna elaborated.

The conversation further delved into the Supreme Court’s ruling where three justices, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala, and Justice Njoki Ndung’u, sided with the LGBTQ community’s right to association.

They asserted that denying registration based solely on sexual orientation would be unconstitutional. However, Justices Mohamed Ibrahim and William Ouko dissented, arguing that recognizing such associations would contravene Kenyan law.

The legal battle for the recognition of LGBTQ rights in Kenya dates back to 2013, initiated by the National Gay and Lesbians Human Rights Commission’s request to the Non-Governmental Organisation Coordination Board for the reservation of a name to advance their rights.

This case underscores the ongoing tension between legal interpretations of rights and traditional values within the country.


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