A Kenyan court upheld the use of anal testing to determine a suspect’s sexual orientation, dismissing the argument that the procedure amounts to torture and degrading treatment.
Justice Matthew Emukule of Mombasa’s high court ruled that anal testing is a “reasonable and legitimate” means to prove what he called “unnatural sex.”
There is no violation of rights or the law, Emekule said on Thursday. “I find no violation of human dignity, right to privacy and right to freedom of the petitioners,” he said.
His ruling was in response to a constitutional challenge brought in November of last year by the National Gay and Lesbian Human Rights Commission. Two men had sought a court ruling to stop enforced anal examinations and HIV tests of men accused of being gay after they were subjected to the procedures.
Homosexual acts are illegal in Kenya and those found guilty can get up to 14 years in jail. The two men were arrested in a bar near Ukanda, in February 2015 on suspicion of engaging in homosexual sex. They will face charges and if convicted, could be jailed for 14 years.
In their petition, the men said the anal examinations and HIV and Hepatitis B tests they were forced to have amounted to torture and degrading treatment. The petition named the magistrate who ordered the exams, the hospital, the police, the director of public prosecution, and the health ministry.
“This is heart-wrenching in so many ways,” said Eric Gitari, the commission’s director.
“I sat in court holding my chin in disbelief,” he added. “It’s so painful when we are trying to encourage the gay community to go to court to affirm their rights; the courts are instead affirming violation of their rights.”
“It sets a very dangerous precedent which jeopardizes the security of so many LGBTI persons, especially gay men,” he warned. “It makes them now very vulnerable to blackmail and extortion with the threat that they can actually be subjected to anal testing and that result of anal testing be used in court to jail them for 14 years. So it’s a life-changing judgment that has been delivered today.”
A memorandum of appeal was filed immediately after Thursday’s ruling by the National Gay and Lesbian Human Rights Commission on behalf of the two petitioners. They now wait for the Court of Appeal to assign a date for a hearing.
Meanwhile, Amnesty International condemned the ruling. “Forcing anal examinations of men suspected of same-sex relationship is abhorrent, and violates the prohibition of torture and other ill-treatment under international law. They should not be allowed to continue,” said director for East Africa, Muthoni Wanyeki.
“It is also absurd as the government has no business proving or disproving consensual homosexual activity. It’s a violation of the right to privacy.”