No one forced suspected gay men to undergo anal tests, says DPP Tobiko

Director of Public Prosecutions Keriako Tobiko

The State has asked the court to dismiss a petition by two men seeking to declare anal examination and evidence derived from the procedure unconstitutional.

The two are charged with engaging in homosexuality and promoting pornography in Kwale County.

On Friday, the State admitted before Justice Mathew Emukule that the two men underwent anal tests willingly and denied they were forced to take HIV tests as alleged by the petitioners.

The Director of Public Prosecutions (DPP) has declared that the tests were justified, and were done in good faith to secure medical evidence of a crime.

In a landmark petition filed in the court on April 27, 2016 the two men, who have been facing the charges since last year, allege that on February 23 2015 they were forced to undergo anal examination by a doctor and forced to give blood for HIV testing, which they said was degrading and a violation of their fundamental constitutional rights.

"Those examinations are medically worthless. They served no purpose other than to debase, degrade and humiliate the petitioners," says their lawyer in an affidavit sworn by Ligunya Sanda Advocates on April 27.

The lawyer argues that the alleged tests violated articles 25, 27, 28, 29, 41 and 43 of the 2010 Constitution and international treaties Kenya has signed and ratified, including the African Charter on Human and Peoples' Rights, Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.

The petitioners argue that evidence derived from the forced examination violated their right to a fair trial and should be disregarded.

They claim they were arrested in a bar in Diani on February 15, 2015 as they were preparing to have drinks and informed by police that they were suspected of engaging in homosexuality and promoting pornography.

They claim that after a search of their homes, they were asked to undergo anal examinations which they refused but police obtained an order from a magistrate on February 23 last year.