On Wednesday 11 October 2017, the Court of Appeal in Mombasa will hear a case against the state’s cruel and degrading treatment of two Kenyan men from Kwale County. The two men were arrested on February 2015 on suspicion of engaging in consensual sexual acts in private on dates unknown, as a result of rumours that they may be gay. The men were then subjected to forced HIV testing and anal examinations under a magistrates order.
The violating examinations, which included being made to lie with their legs up in a humiliating position and having instruments forced into their rectums, are widely accepted to have nomedical merit. The Kenyan Medical Association (KMA), which is the leading professional organization working to improve the welfare of doctors and advocating for quality healthcare for all Kenyans, released a statement to condemn forced examinations only last month.
The KMA stated on 23 September 2017 that it resolved: “To condemn and discourage any form of forced examination of clients, even in the guise of discovering crimes.” The KMA press release advises medical practitioners to: “ALWAYS adhere to the Code of Ethics and Professional Conduct in their actions with all clients under all circumstances, including those under police custody.”
Rights organisation NGLHRC, which is representing the two men maintains that their lives, relationships and livelihoods have been negatively impacted by this traumatic experience. The two men were charged with ‘carnal knowledge against the order of nature and indecent acts between adults’, an old British colonial law still enforced in Kenya today, though the outcome of this trial has not been determined.
The two men, with NGLHRC’s support, petitioned the court to question the constitutionality of subjecting two Kenyan citizens to such inhuman treatment. Breaching freedoms guaranteed to all Kenyan citizens in order to acquire evidence would render such ‘evidence’ unlawful. National Gay and Lesbian Human Rights Commission www.nglhrc.com Nairobi, Kenya.
Head of Legal Affairs at NGLHRC, Njeri Gateru, said: “We all deserve to be treated with dignity and afforded our basic rights, as enshrined in the Kenyan Constitution. The humiliation and pain caused by these useless anal examinations will follow our clients for the rest of their lives. Anyone who values their freedom,and supports our National Values of human dignity, democracy, equality, social justice and freedom from discrimination, should be concerned by this state-sanctioned abuse.
We hope the Appeal Court will put Kenyan citizens’ rights first.” The Kenyan Constitution - the supreme law of the nation - protects all citizens’ basic rights to dignity, privacy and a fair trial. NGLHRC maintains that forced anal examinations amount to ‘cruel, inhuman and degrading treatment’ under Article 25 of the Constitution. However, an initial ruling at the Mombasa High Court in June 2016 found that the anal examinations to ‘’determine sexual orientation’’ were in line with the law. The hearing date against the discriminatory judgement has been scheduled for the 11 October 2017.
