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Concerning this article, Makau Mutuathe chair of the Kenya Human Rights Commission and the dean at the University at Buffalo Law School, The State University of New Yorksays that "where a right is contested, the courts must take the most liberal interpretation of the law to avoid denying the right". Article 24 1 of the Constitution of Kenya provides that, "A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors While the Constitution does not explicitly provide for non-discrimination on grounds of sexual orientation and gender identity, there is scope for this to be rectified through the courts or subsequent legislation.
Article 27 4 of the Constitution of Kenya provides that the "state shall not discriminate directly or indirectly on any ground, including [listed characteristics]", while Article 27 5 states that persons shall not discriminate on any of the grounds "specified or contemplated in clause 4 ".
Thus defined, the prohibition on discrimination by both the state and non-state actors should be read as inclusive of sexual orientation and gender identity. Article 27, which is the Equal Protection of the Constitution, provides "every person" is "equal before the law" and has the "right to equal protection" before the law. That's an unequivocal, categorical, and blanket protection against discrimination.
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The article doesn't exclude homosexuals from the ambit of constitutional protection. Further, Article 27 4 prohibits discrimination on the grounds of "sex". The prohibition of discrimination on the grounds of sex has been understood to include sexual orientation. The Constitution eliminates all wiggle room by prohibiting both direct and indirect discrimination. Article 28 of the Constitution of Kenya provides that, "Every person has inherent dignity and the right to have that dignity respected and protected.
Article 31 of the Constitution of Kenya provides that, "Every person has the right to privacy In a separate case, a Court of Appeal in MombasaKenya, ruled on 22 Marchthat conducting forced anal examinations on people who are accused of same-sex relations is unconstitutional.
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The ruling reversed a High Court decision that had upheld the Kenyan authorities' use of forced anal exams to attempt to provide evidence of homosexual conduct. Article 45 2 of the Constitution of Kenya specifically authorises opposite sex marriage but is silent about same-sex marriage.
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The ceremony received widespread attention in Kenya, most of it critical. Chege's relatives were harassed severely by people living in his home village of Gathiru in Murang'a District. In Februarya rumor spread in the coastal town of Mtwapa that two Kenyan men were going to marry in a local hotel. The rumor unleashed a "house-to-house witch hunt by anti-gay vigilantes, street attacks targeting gay men, the sacking of an AIDS-fighting medical center, and a widening wave of ultra-homophobic national media coverage".
Five days before the date of the non-existent wedding, "many of the muftis and imams discussed the impending wedding during Friday prayers and asked the community to be vigilant against homosexuals. They told their congregants to demonstrate and to flush out homosexuals from the midst of Mtwapa and to ensure that no gay wedding took place".
The day before the non-existent wedding, a press conference condemning the wedding was held by Sheikh Ali Hussein, regional coordinator of the Council of Imams and Preachers of Kenyatogether with Bishop Lawrence Chai, regional representative of the National Council of Churches of Kenya. They warned that "God is about to punish the fastest-growing town in the Coast region.
Come night, come day, we shall not allow that marriage to be conducted in this town tomorrow. We shall stand firm to flush out gays who throng this town every weekend from all corners of this country".
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They also warned the owner of a building in the town, who was allegedly renting rooms only to homosexuals, to evict them within seven days or face their wrath. He said that "homosexuality must be stopped and every means used to make that happen".
Female same-sex marriage is practiced among the GikuyuNandiKambaKipsigisand to a lesser extent neighboring peoples. However, this is not seen as homosexual, but is instead a way for families without sons to keep their inheritance within the family.
The couples are considered married, though the terms used for them are mother-in-law and daughter-in-law.
The female "husband" the "mother-in-law" carries on the family name and property, while the female "wife" the "daughter-in-law" bears children, with the intention of having a son. The female "husband" may be widowed, but may also have a living male husband, but he will not be the father of the female "wife's" children, and the identity of the biological father, though often kin, is kept secret.
Such marriages may be polygamous; in a woman was interviewed who had taken five wives. The Children Act, makes homosexuals and unmarried couples ineligible to adopt children.
With respect to transgender persons, the governmental Kenya National Commission on Human Rights reported in April. A witness who testified at the Inquiry indicated that she had undergone all the processes of re-assignment but Kenyatta National Hospital declined the surgery and did not offer any reasons for declining.
Her attempts to appeal to the Kenya Medical Practitioners and Dentist's Board have not been successful. Without being allowed to complete the therapy, transgender people suffer identity problems since they are biologically either male or female, yet they present themselves in one of the gender by mode of dressing, personality expressions or through other socially defined roles. When arrested, police often face difficulties regarding what cells male or female to detain transgender individuals.
When at entertainment areas, they are afraid of using bathrooms designated for either sex for fear of being caught by other people and accused or mistaken to be using bathrooms for sexual crimes.
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The witness testified that sometimes they meet opposite sex partners who demand to have sexual relationships with them. When they discover that they are not female or male depending on the gender of the sex partnerthey scream and attract members of public to the hotel room causing public nuisance, stigma and embarrassment to the transgender person. Transgender people face stigma, discrimination, and violence in Kenya. Discrimination in particular is prevalent, as is sexual violence.
This is in the areas of recognition of a third sex by the government, access to justice, employment and other spheres of public life.
Intersex people face stigma, discrimination, and violence in Kenya, including mutilation and non-consensual medical interventions, and difficulties in obtaining documentation.
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Kenya may not decriminalize same sex unions at this stage as such acts are considered as taboo and offences against the order of nature which are repugnant to cultural values and morality. Indeed the public gave overwhelming presentations to the Committee of Experts [on Constitutional Review] against the inclusion of same sex rights under the new constitution.
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It must however be reiterated that the government does not discriminate against anyone in the provision of services. No one is ever required under the law to declare their sexual orientation under any circumstances. Kenya is currently not undertaking any measures to decriminalize same sex unions. Public opinion is strongly against the legalization of same sex unions.
The Constitution provides under article 45 2 that a person has the right to marry a person of the opposite sex, based on the free consent of both parties. However, under article 27 4the Constitution, the grounds prohibited for non-discrimination are not limited and therefore this allows room for individuals to claim the violation of their rights on the grounds of their sexual orientation, in the event that they are discriminated against either directly or indirectly by the State or other individuals.
Until such time that public opinion will change, the Government has tried to accord certain protections to lesbian, gay, bisexual and transgender During the review, Kenya stated:.
With regard to same-sex relationships, there had been serious intolerance because of cultural beliefs and overwhelming opposition to the decriminalization of such relationships, as observed during the constitutional review process.
However, the Government did not support discrimination in terms of access to services. Take concrete steps to provide for the protection and equal treatment of lesbian, gay, bisexual and transgender persons Netherlands ; decriminalize same-sex activity between consenting adults Czech Republic ; repeal all legislative provisions which criminalize sexual activity between consenting adults United States of America ; decriminalize homosexuality by abrogating the legal provisions currently punishing sexual relations between consenting individuals of the same sex, and subscribe to the December General Assembly Declaration on sexual orientation and human rights France.
In response, Kenya indicated on 6 May that same-sex unions were culturally unacceptable in Kenya. We wish to state as follows. One, there has been a serious intolerance to homosexual relationships in the country because of cultural beliefs.
In fact, these relationships are considered taboo in Kenya. The only way we see these being accepted would be over the long term if there are cultural changes. But currently there is serious opposition to decriminalizing same-sex relationships.
In fact, during the constitution-making process, public views were received on this and they were overwhelmingly towards continuing the current criminalization of same-sex relationships. But we also want to state that as a government, we do not support discrimination on people who practice same-sex relationships.
The law that is HIV and AIDS Prevention and Control Act of expressly prohibits any discrimination towards same-sex relationships or people on the basis of their sexual orientation. The U. Department of State 's human rights report found that "societal discrimination based on sexual orientation was widespread [in ] and resulted in loss of employment and educational opportunities.
Violence against the LGBT community also occurred, particularly in rural areas and among refugees. A public affairs officer at the embassy said, "The U.
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