Forced ‘gay anal test’ was humiliating

 George Maina Njeri (right) and Omar Caleb Iddris (left) when they appeared before the Kwale County Magistrates  [PHOTO BY GIDEON MAUNDU/STANDARD].

Two men charged for engaging in gay sex and promoting pornography in Kwale are taking on the Director of Public Prosecution (DPP) in a landmark case at the Mombasa High Court that could make it illegal for government agents to 'open men's boots' to  sniff around for evidence of homosexuality. 

George Maina Njeri and Caleb Omar Idris not only claim they are falsely accused but are challenging a procedure used by the state to extract evidence of homosexual conduct. They allege that besides being detained in a filthy public toilet after their arrest, prison guards humiliated them by subjecting them to forced anal examination and tests for HIV. The petitioners therefore want their trial at the magistrate's court in Kwale stopped pending the outcome of the petition at the High Court challenging the admissibility and legality of evidence extracted through forceful anal tests. They say the magistrate who gave orders to police and doctors to perform the anal tests acted unconstitutionally.

Maina and Idris claim they were arrested in a bar in Diani on February 15, 2015 where they were preparing to have drinks and informed by police that they were suspected of engaging in homosexuality and promoting pornography. They claim that after a search of their homes, they were compelled to undergo anal examinations after police obtained an order from a magistrate (a Miss Njagi) in Ukunda. The two men argue that the tests, which were conducted February 23, 2015, were degrading and a violation of their fundamental constitutional rights, including the Bill of Rights. The petitioners also argue that evidence derived from the forced anal examination and blood tests violated their right to a fair trial and should be disregarded.

But the state wants Justice Mathew Emukule to dismiss the petition. The DPP says two men underwent anal tests, which are "justified and done in good faith to secure medical evidence of a crime", willingly. State lawyer George Mungai also argues that they were represented by a lawyer who did not object to the tests and that they were not forced to take HIV tests as alleged.

"Those examinations are medically worthless. They served no purpose other than to debase, degrade and humiliate the petitioners," says their lawyer in an affidavit sworn by Ligunya Sanda Advocates, citing attach what they allege to be findings from overseas proving that anal examination does not provide any reliable legal evidence.

The affidavit argues that the alleged forcible tests violated articles 25, 27, 28, 29, 41 and 43 of the 2010 Constitution and international treaties Kenya has signed and ratified including the African Charter on Human and Peoples' Rights, Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.

The petition alleges that following the order, the two men were transported to Mombasa for the examination at the Coast General Hospital. Now the petitioners are challenging that order and argue that it was not derived from any known Kenyan law. They cite various Kenyan court rulings and rulings in overseas courts to demonstrate that they were subjected to illegal and inhumane treatment and that evidence derived from the tests was therefore illegal and cannot be used in a fair trial. In their view, forced anal examination is intrusive and humiliating, according to Kenya's laws and treaties it has ratified and further

They allege that studies have shown such examinations to be medically and legally worthless.They add that even if anal examinations "did provide forensic evidence of homosexual conduct, that evidence could not be admitted in court if obtained by force."

Interestingly, the petitioners further argue that the state forced them to undergo the tests on a discriminatory premise or perception that they belonged to a "sexual minority." This premise alone violates the 2010 constitution for fostering discrimination on sexual/ minority orientation, they aver.

"They have been forced to face the discriminatory conduct that actual or perceived homosexual men in Kenya all too often must face," says the petition which also alleges that after arrest the two men were forced to stay in a toilet area in prison.

But on May 13, the Director of Public Prosecution through state lawyer George Mungai asked the High Court to "dismiss the petition in its entirety" after arguing that the petitioners not only lied about some aspects of the tests because no medical tests for HIV or hepatitis were conducted.

Mungai says the petitioners have not demonstrated that they were forced to undergo these tests through actual force or fraud and that the nature of charges against the two men can only be proved through medical examination.