Anti-gay law undermines Kenya’s socio-economic goals

Gerbrandt van Heerden | Jun 08, 2019
Kenya’s Vision 2030 development programme ambitions are contradicted by its stance on human rights.

The Kenya High Court’s recent dismissal of a challenge to the country’s Penal Code – which makes consensual same-sex acts between adults illegal – runs counter to the East African state’s socio-economic ambitions. 

The landmark case arose from a 2016 challenge against discriminatory sections of the Penal Code by the Kenyan National Gay and Lesbian Human Rights Commission (NGLHRC).     

The High Court, however, found that the Penal Code was neither unconstitutional nor a violation of the right to privacy and human dignity. 

The presiding judges concluded that the challenged provisions of the Code did not single out LGBTQ (lesbian, gay, bisexual, transgender and queer) people, but applied to all citizens. Judge Chacha Mwita argued that ‘there is no evidence to show that the petitioners were discriminated and their rights violated…’. Judge Roselyne Aburili went further in arguing that there is ‘no conclusive proof that LGBTQ people are born that way’.

These statements are at best incorrect and at worst insulting to Kenya’s LGBTQ citizens, who have endured violence, workplace discrimination, social alienation and threats.  

According to a Human Rights Watch report titled ‘Dignity debased: Forced anal examinations in homosexuality prosecutions’, Kenya was one of six African countries between 2011 and 2015 to use anal examinations as a way to ‘determine’ whether someone was guilty of homosexuality.  

Violence against Kenya’s LGBTQ community is quite common, but victims are reluctant to report crimes as the police are often hostile towards them.  

Police officials justify this hostility by citing Kenya’s anti-gay laws. In 2015, residents of the coastal tourist towns of Diani and Ukundu led vigilante-style ‘hunts’ for gay men. The victims – one was hospitalized – were subsequently arrested and charged with ‘unnatural offences’. There were no consequences for the attackers.  

The ruling by Kenya’s High Court came close on the heels of a report by Open for Business, a coalition of global companies arguing that inclusive and diverse societies are conducive to business and economic growth.  

The report estimated that Kenya loses up to a $1.3 billion dollars (or 1.7% of the country’s annual GDP) in tourist revenue as a result of LGBTQ tourists being deterred by the country’s anti-gay laws.

It also estimated that the prevalence of depression and HIV Aids arising from discrimination costs Kenya a further $1 billion, equivalent to about a quarter of Kenya’s education spending in 2018, and greater than the total spent on healthcare.

High unemployment and underemployment rates of LGBTQ Kenyans, as well as a large wage gap between them and heterosexual citizens, contributes to a further $105 million loss.  

As a country in which millions still live in poverty, Kenya would do well to recognize the costs of stifling its own economic and social advancement to such a degree. 

Along with other poorer countries, Kenya has an even greater incentive than developed countries to legalise homosexuality and abolish other forms of LGBTQ discrimination.  

If the country is serious about achieving its Kenya Vision 2030 plan – a development programme to transform itself into a newly industrialising, middle income country by 2030 – then scrapping needless laws that prevent LGBTQ citizens from meaningfully contributing to the country’s economy should be included in that programme.

 

Gerbrandt van Heerden is an Analyst at the IRR.

 

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