Why court ruled against same sex marriages

The High Court has delivered a big blow to gays and lesbians in a landmark ruling outlawing homosexuality in Kenya.

Yesterday, Judges Roseline Aburuli, Chacha Mwita and John Mativo ruled that they would not allow something that goes against the Kenyan society’s beliefs to take root and that legalising it will go against the spirit of the Constitution which states that marriage and sexual acts are between man and woman.

The judges declined to repeal Sections 162 and 165 of the penal code which criminalise homosexuality, meaning that any person found engaging in sexual act with another person of same gender could be sent to prison for up to 14 years. “We are not even persuaded by foreign doctrines which legalised homosexuality. Our laws must reflect the aspirations and values we hold as a nation, there is no scientific proof that homosexuals were born that way to persuade us to legalise their unions,” ruled the judges.

Their decision was a big blow to the Lesbians, Gays, Bisexual, Transgender and Intersex (LGBTI) community who thronged the court for their big day.

They had marched to the court in groups, some dressed and waving their rainbow flags in readiness for what would have been the turning point in recognising LGBTI rights and unions without fear of being arrested and charged in court for indecent acts.

As the judges read the decision in bits, they listened in disbelief as each of their prayers to repeal Sections 162 and 165 of the Penal Code were knocked down and dismissed one after the other.

As Justice Aburili pronounced the final verdict dismissing the case, the disappointment was too much to bear as some broke down in tears while others found solace in their partners.

“We are definitely not giving up on the fight, it is just the beginning. We have instructed our lawyers to immediately move to the Court of Appeal and if need be, we will proceed to the Supreme Court to ensure sections 162 and 165 of the penal code are repealed,” said a LGBTI activist.

Bishop Alfred Rotich of the Catholic church said it was God’s wisdom that guided the judges in making the decision to uphold what the church believes is the true foundation of families.

“We are happy this has come to pass. Our society is built on family unions and what we are telling homosexuals is that they will be wasting their time to appeal the decision. They should come to us for counseling so that they come out of those groups,” said Rotich.

Under the umbrella of the Coalition of Gays and Lesbians Societies in Kenya and backed by the Nyanza, Rift Valley and Western Network (NYARWEK), the LGBTI community claimed that sections of the penal code that criminalises homosexuality were ambiguous and unconstitutional.

But the judges ruled there was nothing ambiguous about the sections and that unnatural sex was a crime like sodomy. “We are not persuaded by arguments that the sections are vague and unclear. It is dangerous to take that route since it is a mischievous way by the petitioners to legalise homosexuality against the express provisions of the Constitution,” ruled the judges.