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Anal examination on homosexuals lawful, judge maintains

By Willis Oketch | June 17th 2016
Justice Mathew Emukule

Suspects can be forced to undergo examinations to determine if they have engaged in homosexuality which is a crime, a court has ruled.

Justice Mathew Emukule of the High Court in Mombasa said some orifices should not be substituted with sexual organs.

The judge was ruling in a petition by George Maina Njeri and Caleb Omar Idris who were charged with engaging in homosexuality and promoting pornography in Kwale last year. On April 27, the two petitioned the High Court to declare anal examination conducted on them and evidence they derived unconstitutional.

But the judge said he reached a verdict, disallowing the petition after balancing public interest, the law and the interests of the suspects.

He said any future classification of the anus and the mouth as sexual organs by modern science and human preference would qualify as “new knowledge”.

He said appropriate methods shall then be invented to penetrate them for medical examination and retrieval of criminal evidence without breaking the law or violating rights of suspects.

“If modern man and woman have discovered that these orifices may be used as substitutes for sexual organs, then medical science or purveyors of this new knowledge will have to discover new methods of accessing these parts of the human body for purposes of medical and forensic evidence and also for curative or medical examination,” ruled the judge.

The suspects were challenging evidence gathered by the State against them through anal examination.

The petitioners accused police of forcing them to undergo the tests. They also allege doctors, under police supervision and a magistrate’s order, forced them to take HIV tests.

The petitioners wanted the High Court to declare them unconstitutional, inhuman, discriminatory and degrading after the government admitted the tests were actually carried out.

They also wanted the procedure declared as rape for being intrusive and when done without consent.

They argued the order allowing the anal tests is illegal even as the judge maintained that the procedure was lawful. Their trial is set to proceed in the magistrate’s court.

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