HUMAN RIGHTS TRENDS IN KENYA PERTAINING TO SEXUAL

UNCLAS SECTION 01 OF 02 NAIROBI 002702 SENSITIVE SIPDIS FOR AF/FO AND AF/RSA - LOUIS MAZEL, LAURA GRIESMER, AND LEARNED DEES E.O. 12958: N/A TAGS: PREL PGOV KDEM KE HURI PHUM SUBJECT: HUMAN RIGHTS TRENDS IN KENYA PERTAINING TO SEXUAL ORIENTATION AND GENDER IDENTITY ¶1. (SBU) Summary: Same sex relationships in Kenya are criminalized as felonies, and individuals in such relationships face strong public attitudes which stigmatize lesbian, gay, bisexual and transgender (LGBT) relationships as "un-African" and "against the order of nature." However, the Kenyan government has not to post's knowledge prosecuted any individuals under the current administration, government leaders have not politicized LGBT issues, and the government has permitted LGBT advocacy organizations to register and conduct activities. There is no pending legislation specifically focused on LGBT issues. The proposed Harmonized Draft Constitution defines marriage as solely between a man and a woman, but also contains freedom from discrimination and equal protection clauses which could be interpreted to protect LGBT individuals. End summary. ¶2. (SBU) Officially, same-sex relationships are criminalized as felonies in Kenya. The Kenyan Penal Code criminalizes "carnal knowledge against the order of nature," which is interpreted to prohibit homosexual activity, and specifies a maximum penalty of 14 years imprisonment. The use of coercion or force increases the penalty to 21 years imprisonment, and a separate statute prescribes a maximum 5 year sentence with possible corporal punishment for men who seek or engage in sexual activity with other men. Despite these provisions, there have been no reported prosecutions of individuals for sexual orientation or consensual lesbian, gay, bisexual or transsexual (LGBT) activity in recent years. LGBT advocacy organizations, such as the Gay and Lesbian Coalition of Kenya, have been permitted by the government to register and conduct activities. Former President Moi used to make frequent statements condemning homosexuality as un-African and a criminal perversion; since his departure in 2002 politicians have generally avoided discussing LGBT issues in public although many express personal opposition in private. ¶3. (SBU) Kenyan LGBT individuals face greater social stigma than official harassment. A recent article in Kenya's leading newspaper summarized prevailing public opinion in this way: "It's hard to imagine a Kenya where homosexuality is viewed as anything but a moral and religious abomination. The majority still link it to foreign influences or drug abuse, or dismiss it as a perverted habit practiced in upper class social cliques." Christian and Muslim leaders almost uniformly condemn LGBT activity as contrary to their religious beliefs and evidence of immoral influences from developed societies. In 2007 the Council of Imams and Preachers of Kenya and other civic leaders condemned homosexuality and argued against legalizing gay marriages. A group in Mombasa created the Muslim Youth Pressure Group to oppose homosexuality in 2007. ¶4. (SBU) Despite strong social condemnation, discreet LGBT activity is widespread and incidences of violence against LGBT individuals rare. Although not a useful indicator of consensual LGBT activity, a 2007 Kenya Aids Indicator Survey found that male prostitution occurs throughout the country and that eighty-one percent of the clients are Kenyan. These findings run contrary to the perception that LGBT activity is concentrated in Coast province and initiated by tourists. (Note: Both hetero- and homosexual prostitution patronized by tourists is endemic in coastal resort centers. End note.) In the past year, the Kenya National Commission on Human Rights (KNCHR) has documented several incidents of Muslim Imams calling for public beatings of homosexuals, but these statements have not resulted in reported violence. KNCHR has only documented one alleged instance of violence against an LGBT individual this year, a case in which a lesbian couple were assaulted in a Nairobi nightclub by other patrons. ¶5. (SBU) Kenya's media has played a mixed role relative to LGBT rights. Religious media outlets, both Muslim and Christian, tend to reflect the conservative views of clergy, while the sensationalist "gutter press" report rumors of LGBT relationships alongside other gossip stories. In contrast, the two largest English language newspapers have run several articles condemning social stigma and calling for equal rights for LGBT individuals. ¶6. (SBU) There is no pending legislation specifically focused on LGBT issues. The Harmonized Draft Constitution, which is in the midst of a process of political and public debate, defines marriage NAIROBI 00002702 002 OF 002 as between a man and a woman, and would appear to implicitly prohibit LGBT marriages. The clause states: "The family is the natural and fundamental unit of society and the necessary basis of social order. Every adult has the right to marry a person of the opposite sex, based upon the free consent of the parties." ¶7. (SBU) Though limiting the prospects for legalization of LGBT marriages, the draft constitution contains a bill of rights with provisions that could be interpreted to protect LGBT individuals. The bill of rights provides that "every person is equal before the law and has the right to equal protection and equal benefit of the law," and that "the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth." Kenyan LGBT activists believe that these provisions could be interpreted to protect LGBT rights, and have petitioned for the non-discrimination clause to explicitly reference sexual orientation and gender identity as protected categories. Given social opposition to LGBT rights, such an amendment is unlikely. ¶8. (SBU) Comment: Although Kenya's legal and social landscape is clearly not LGBT friendly, discreet LGBT activity is tolerated and leaders have not politicized LGBT issues. Post's contacts in the LGBT human rights community do not expect that Kenya will follow Uganda's example of introducing draconian anti-LGBT legislation. End comment. RANNEBERGER