Today, May 17, marks the observance of the International Day Against Homophobia, Biphobia, and Transphobia, a global initiative dedicated to raising awareness and advocating for the protection of human rights for all individuals. The theme for this year's commemoration is, "No One Left Behind: Equality, freedom, and justice for all."
In recent years, numerous regressive laws and policies, particularly across the African continent, have fueled prejudice and infringed upon the rights of minority groups. Instances such as the enactment of the Anti-Homosexuality Act in Uganda, alongside similar legislative proposals in other jurisdictions, have contributed to the perpetuation of discrimination and abuse against sexual minorities. Conversations have taken place regarding the potential formal introduction of a comparable bill to the National Assembly of Kenya, with draft versions of the bill already out. About six African countries have taken steps to tighten their anti-homosexuality laws.
The passing of these draconian laws has resulted in a surge in hate crimes, accompanied by a noticeable increase in homophobia and transphobia. The manifestation of discrimination has taken various forms including arbitrary arrest, instances of police abuse, extortion, loss of employment and restricted access to healthcare.
In Kenya, there has been a steadfast commitment by human rights defenders to uphold the rights of minority communities, guided by the principles enshrined in the constitution and upheld by the judicial system. Over the years, courts have served as guardians of justice, affirming the rights of these marginalized groups. This is amidst strong opposition by anti-rights groups.
Though with a long way to go, the ongoing battle against homophobia has seen significant strides, with some of the recent court decisions reflecting a progressive stance. Noteworthy among these was the 2023 decision allowing the registration of the National Gay and Lesbian Human Rights Commission (NGLHRC), a pivotal step affirming the right against discrimination on the basis of sexual orientation and of all individuals to freely associate.
Similarly, a recent injunction issued at the High Court in Mombasa, safeguarding the security of the queer community, further highlights the imperative of inclusive protection for all citizens. The temporary orders are in place until July 24th, pending the determination of the main petition. The petitioners sought to end protests and incitements against LGBTQI groups.
The Universal Declaration of Human Rights unequivocally asserts the protection of human rights for every individual, irrespective of their identity or orientation. Article 2 of the African Charter on Human and Peoples’ Rights provides for the right to equality for all and protects against discrimination based on sex or other status. Further, the UN Human Rights council resolution 41/18 highlights the protection against violence and discrimination on sexual orientation and gender identity. Article 27 of the constitution of Kenya is clear on equality and freedom from discrimination.
It is therefore incumbent upon nations to prioritize the enactment and enforcement of laws and policies that safeguard the rights of all their citizens, without discrimination. Despite the above legally binding provisions, for most African countries, the opposite has been prioritized with homosexuality criminalized in 33 out of 55 countries. Angola and South Africa have decriminalized homosexuality and Seychelles, Lesotho and Botswana have also decriminalised same-sex relations. However, without complementary laws against discrimination, societal prejudice remains pervasive.
We must continue to champion the cause of minority rights, fostering a society built upon principles of equality, dignity, and respect for all individuals. By upholding these values, we move closer to realizing a world where no one is marginalized or denied their fundamental rights and freedoms.
Kavutha Mutua is an Advocate of the High Court of Kenya and a Human Rights Champion
