Another long wait for gays as judges push ahead key verdict

Members of the homosexuals community outside Milimani courts, Nairobi, for the case yesterday. [George Njunge, Standard]

The stage was all set as tens of homosexuals, lesbians and bisexuals converged at the Milimani High Court yesterday for the anticipated landmark judgment on decriminalising same sex unions.

Under the umbrella of the Coalition of Gays and Lesbians Societies in Kenya, the group came prepared for any eventuality, their security beefed up incase of backlash that may have followed the decision.

By 9am, the court roomed was packed. Local and international media had set up early, while the public milled outside the court for lack of space.

International attention

Others crammed the door for a glimpse of the people who had attracted the international attention.

The long awaited moment arrived at 9.30am when Justice Chacha Mwita walked in. The silence that followed was evidence of the high expectation from the Coalition of Gays and Lesbians Societies in Kenya.

But to their disappointment, the history they hoped to make by repealing Section 162 of the Penal Code that outlaws same sex unions was never to be. They were left to groan and whine after Justice Mwita announced they have to wait until May 24 to know their fate.

Nobody saw it coming, not even the international press which started writing advance copies as early as last week. And for a judiciary which recently recommitted itself to better public communication, the last minute postponement was as baffling as the wide interest the matter had attracted outside the borders.

“To say we are disappointed is an understatement. It has taken too long and we came prepared with high hopes that today is our day. It is such a setback to us but we will wait as the judgestated,” said one group member.

Justice Mwita said the other two judges handling the case due to the high volumes of documents submitted by all parties, which made it difficult to write a judgement in time.

Justice John Mativo was on leave while Justice Roseline Aburili had been transferred outside Nairobi, making it difficult for the three to meet and finalise the decision.

“You may not like the news I have today, we have worked so hard to deliver the judgment but is not ready due to the challenges we are facing. We are also sitting in other benches which consume our time,” said Mwita.

The homosexuals are seeking a repeal of sections 162 and 165 of the penal code which criminalise sexual acts with persons of the same gender.

According to the two sections, a person who has sexual intercourse with another of the same sex whether in public or in private is guilty of a felony and is liable to imprisonment for up to 14 years.

Severe punishment

Through lawyer Paul Muite, the group submitted that making homosexuality a crime is discriminatory and contravenes constitutional provisions on the right to equality; freedom from discrimination and human dignity.

Muite argued that the case had nothing to do with same sex marriage or legalising homosexuality, only challenging severe punishment meted on gays and lesbians.

The petition was however opposed by the Attorney General and Christian and Muslim organisations, who claimed that it was being pushed by foreign governments to legalise homosexuality in Kenya.

The Christians and Muslims said homosexuality can be suppressed given that it is not a physical and natural condition but just a feeling.