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Two homosexual suspects ask court to outlaw forced examination

Two men have challenged the legality of anal examinations of suspects facing charges of engaging in homosexual acts.

The two, who claim they were forcibly subjected to an anal examination by police and doctors at Msambweni District hospital four years ago following a court order, want the Court of Appeal to declare it unconstitutional.

The two suspects had challenged their trial in the High Court after they were charged in a magistrate's court three years ago, arguing that evidence against them had been obtained forcibly through an anal test.

They argued that the test also amounted to rape.

But Justice Mathews Emukule (now retired) rejected their argument and allowed the trial to proceed. He ruled that the procedure and examination used to obtain evidence again the suspects was lawful and within the confines of the Constitution.

Yesterday, lawyer Ligunya Sande told justices Alnashir Visram, Wanjiku Karanja and Martha Koome that her clients' rights were violated when they were subjected to an anal examination on suspicion they were gay.

But the State, through lawyer Richard Ngare, defended the High Court declaration that there was nothing wrong with carrying out the examination on the appellants.

Mr Ngare insisted the rights of the two suspects, who are still on trial, were never violated.

The Director of Public Prosecutions, through Brain Ayodo, supported Ngare’s submission and asked the Court to dismiss the appeal.

The judges are expected to rule on March 15.

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