NAIROBI: A Desk Review on the Context of LGBTQ Rights
This rapid desk review was prepared to explore the context of LGBTQ rights and advocacy in Nairobi for future work in Kenya. Specifically, the desk review looks at the following areas:
- Legal, political, and economic context
- Movement context
- Public discourse and media
- Research capacity
- Security considerations
1.1 Legal, political, and economic context
Kenya is one of the 36 countries in Africa in which homosexuality is a criminal offence. The Penal Code defines “carnal knowledge against the order of nature” and penalises same-sex acts whether or not they are consensual for up to 14years imprisonment. Laws against non-conforming sexualities were introduced through the Colonial Office Model Code in 1930 and have not since been repealed despite recent petitions to repeal sections 162 and 165 of the Penal code on the grounds that they violate the right non-discrimination as enshrined by the Kenya’s constitution.
In February 2018, The Attorney General asked the court to dismiss the petition to repeal sections 162 and 165 which was later brought back to court and rejected in May 2019. The Gay and Lesbian Coalition of Kenya states that “Identifying as lesbian, gay, bisexual, transgender, or intersex is not a crime. Even though some laws make private and consensual sex between adults of the same sex a crime, these laws criminalise acts and not identities.”
Following several incidents, most recently the two rulings in 2019, the first upholding the registration of the National Gay and Lesbian Human Rights Commission (NGLHRC) and the other rejecting the petition to repeal sections 162 and 165 of the penal code, there is a blaring discordance in the legal system regarding LGBTIQ non-discrimination. Another instance delineating Kenya’s ambivalent stance on LGBTIQ rights, freedoms and protections is in the State’s acceptance of Sweden’s recommendation at Kenya’s 2nd Cycle of Review of the Universal Periodic Review to “adopt a comprehensive anti-discrimination law affording protection to all individuals, irrespective of their sexual orientation or gender identity”. Despite accepting this recommendation, the mid-term progress report on the implementation of accepted recommendations from the 2nd cycle review in 2015 did not provide any reporting on the implementation of Sweden’s recommendation. Despite the ambivalent stance by the State on LGBTIQ rights, the fact that petitions and cases brought forward to the courts in the country are processed and not dismissed indicates that there is a growing openness for debate within the judicial system. In addition, in comparison to neighbouring countries, Kenya hasn’t recently had proposals for more restrictive discriminatory laws.
The political environment in Kenya is one that continuously perpetuates inequality both socially and economically which means that LGBTIQ people and women are relegated to the periphery of the society and bear the brunt of the country’s political, economic and social challenges.
Information on the precise economic status of the LGBTIQ population in Kenya is not readily available through secondary sources. According to a report by Open for Business on the Economic Case for LGBT+ Inclusion in Kenya, sexual minorities face prejudice in securing employment, accessing medical care or accessing education due to the prejudice they face in society. The report estimates that about $1.3billion is lost annually in Kenya due to LGBTIQ discrimination but does not provide specific data on the economic state of LGBTIQ people in the country.
1.2 Movement context
LGBTIQ activism in Kenya is led by national level organizations based in Nairobi such as the Gay and Lesbian Coalition of Kenya (GALCK), the National Gay and Lesbian Human Rights Commission (NGLHRC), UHAI East African Sexual Health and Rights Initiative (UHAI EASHRI), Gay Kenya Trust, None on Record, The Nest Collective, Minority Women in Action (MWA), Artists For Recognition and Acceptance (AFRA), Nyanza, Rift Valley and Western Kenya Network (Nyarwek) among other organizations. These organizations are largely LGBTIQ-led. There are other organizations which are not exclusively focused on SOGIE work but have incorporated SOGIE issues in their work such as the Kenya Human Rights Commission (KHRC) as well as the Kenya National Commission on Human Rights (KNCHR), Hivos East Africa among others.
Organisations such as Minority Women in Action is reported to have been formed in part as a reaction to the male dominated nature of LGBTIQ organizing in Kenya in the early 2000s because queer women struggled with different issues from men’s issues. AFRA is another queer woman focused organizations but the documentation on both organizations is scanty.
LGBTIQ groups have been seen to collaborate with each other particularly on the Repeal section 162 and 165 petition in which NGLHRC, GALCK and Nyarwek worked together presumably to pull their resources together. Information on how, why and the frequency with which LGBTIQ organisations work in Kenya is not well documented, it is therefore also unclear in which other ways LGBTIQ organizations work with the human rights organizations which aren’t primarily SOGIE focus.
1.3 Public discourse/media environment
In thinking about the media environment, it is crucial to look at the state of media freedom which is determined by external factors influencing operation of the media, as well as the media practitioners’ capacities to be watchdogs over society. Kenya’s media freedom has been on a steady decline over the past few years often citing national security as the pretext. Media houses have often been physically attacked, threatened and intimidated by security forces and politicians particularly around campaign periods. This year’s World Press Freedom Index has ranked Kenya four positions lower than it was ranked in 2018, having dropped from a score of 32.44 to 30.82 over the past year. There are several instances of silencing journalists who are critical of government leaders. One such instance is Denis Galava, a senior editor at a national daily ‘Daily Nation’ was fired after writing an opinion piece in which he was critical of the President and his record in office. Another instance is the Government taking three major television stations (NTV, Citizen TV and KTN News) off the air in 2018 for seven days. In addition to the deteriorating media freedom, corruption within Kenyan media has been reported and written about at length . Faith Ijaza (2017) The thriving corruption in the Kenyan media). .
It is against this backdrop, in the larger context of the legal and sociopolitical environment in the country that mainstream media in Kenya is covering LGBTIQ stories. LGBTIQ stories and opinions are covered by the mainstream media to varying degrees and in varied ways from one journalist to the next, some headlines include:
among several others. On the surface, apart from stark tone-deafness in certain articles one might see that there seems to be a sense of openness in the ways LGBTIQ stories are reported by mainstream media. These stories are often written around events such as the recent court rulings, and during the nomination of the Kenyan film ‘Rafiki’ for several international awards. It would be useful to conduct an in-depth study into the patterns of LGBTIQ reporting by mainstream media.
1.4 Research capacity
National level NGOs such as the Kenya Human Rights Commission (KHRC), Hivos East Africa, UHAI EASHRI, the Gay and Lesbian Coalition of Kenya (GALCK) and the Kenya National Commission on Human Rights (KNCHR). An online platform known as the Integrated Sexual Orientation Gender Identity and Expression Community Online Platform (ICOP) exists to “enhance meaningful community engagement and ownership in research using a web-based portal” and contains a few publications from 2016 and 2017.
1.5 Security considerations
It is strongly advised that any work in Nairobi on sexual orientation and gender identity and expression takes concerted security considerations in planning and implementation. It is not apparent what kinds of specific risks would arise from implementing such work, however the priority for any such projects in Nairobi should be to ensure no harm comes to partners as a result of engagement with the project.
 Finerty, C. E. (2012), “Being Gay in Kenya: The Implications of Kenya’s New Constitution for its Anti-Sodomy Laws,” Cornell International Law Journal: Vol. 45 : No. 2 Available at https://www.lawschool.cornell.edu/research/ILJ/upload/Finerty-final-version.pdf
 Mid-term Progress Report on the Implementation of Accepted Recommendations from Kenya’s 2nd Cycle Review in January 2015 https://lib.ohchr.org/HRBodies/UPR/Documents/Session21/KE/SecondCycleMid-term_Kenya.pdf
 Open for Business (2018) “The Economic Case for LGBT+ Inclusion in Kenya”. https://drive.google.com/file/d/1qBeumxNW55O99ib4lTJ0TorycHYScGw5/view
 Amakobe, G., Dearham, K., & Likimani, P. (2018). Gender theatre: The politics of exclusion and belonging in Kenya. In Nicol N., Jjuuko A., Lusimbo R., Mulé N., Ursel S., Wahab A., et al. (Eds.), Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope (pp. 347-370). London: School of Advanced Study, University of London. Retrieved from http://www.jstor.org/stable/j.ctv5132j6.21
 Article 19 (2018) Kenya:Violations of Media Freedom https://www.article19.org/wp-content/uploads/2018/05/Kenya-Report-1.pdf
 Allison, S.. (2016). Blow to Kenya’s media after editor sacked for criticising president. Guardian Africa Network https://www.theguardian.com/world/2016/jan/27/blow-to-kenyas-media-after-editor-sacked-for-criticising-president
 Oduor, E. (2018). Kenya media feels the heat as state switches off top TV stations. The East African. https://www.theeastafrican.co.ke/news/ea/Kenya-TV-shutdown-press-freedom/4552908-4290286-9yaf3c/index.html
 Mudhai, F. (2007). Time to harvest? Media corruption and elections in Kenya. Ethical Space: The International Journal of Communication Ethics. Vol 4, No 4. Retrieved from http://www.communicationethics.net/journal/v4n4/v4n4_feat2.pdf
 Ijaza, F. (2017). The thriving corruption in the Kenyan media. Standard Media Kenya. https://www.standardmedia.co.ke/ureport/story/2001240571/the-thriving-corruption-in-the-kenyan-media