CIVICUS speaks about a recent court order protecting LGBTQI+ people in Kenya with the advocacy team of the Centre for Minority Rights and Strategic Litigation (CMRSL), a civil society organisation working for the equality and dignity of LGBTQI+ people and against discrimination and violence.
What’s the impact of anti-rights campaigns on LGBTQI+ people?
Anti-rights campaigns severely hurt LGBTQI+ people. Organisations serving LGBTQI+ people have closed for fear of attacks from an inflamed public. Professionals, including doctors, clinicians and lawyers providing services to LGBTQI+ people are threatened with violence. This affects people’s right to a fair trial. For example, the lawyer defending two trans women in Lamu charged under laws that criminalise same-sex sexual relations couldn’t consult with them to prepare the case because they were in hiding. They were forced to travel to court incognito on the day of the hearing, and the lawyer was reluctant to go to the court, located in a densely populated area, for fear of being lynched, and was threatened on the street when seen with the clients.
People who identify as LGBTQI+ are often prevented from accessing essential services such as antiretroviral medication, prophylaxis to prevent HIV, hormones, testing and treatment for sexually transmitted infections and other clinical care due to fear, or because facilities have been forcefully relocated or closed. They are also prevented from going out in public, affecting their ability to work and socialise.
Many LGBTQI+ people have had to move for safety reasons. They have also been evicted from housing, fired from jobs and been refused service and kicked out of businesses such as bars and restaurants. The surveys we’ve conducted show that 83 per cent of LGBTQI+ people have experienced physical and verbal abuse. They suffer extreme psychological distress from constant threats and hate speech, with 52 per cent reporting high levels of fear and 32 per cent having experienced so-called ‘conversion practices’.
What’s been the impact of a recent court order protecting Kenyan LGBTQI+ people?
In late April, in response to a petition we submitted, the High Court in Mombasa issued an interim ruling ordering anti-LGBTQI+ groups and people to refrain from inciting violence against LGBTQI+ people. This offers a temporary reprieve from hate speech, vilification campaigns and threats of violence. It also sends a strong message to the public that LGBTQI+ Kenyans are human beings entitled to all rights and freedoms, including the rights to security, protection and residence, just like everyone else.
The court order is expected to have several impacts, some of which are already noticeable. Since it was issued, there haven’t been any anti-LGBTQI+ protests and there’s been a noticeable drop in abuse, incitement to violence and human rights violations directed at LGBTQI+ people by the public, both online and in physical spaces.
With this court order in place, LGBTQI+ people can now more easily report any violation of their rights to the authorities, and the authorities are expected to take them seriously and take action when necessary. This will hopefully make LGBTQI+ people more confident in exercising their rights and freedoms.
The legal victory, even if temporary, has also improved media coverage, fostering a sense of pride, confidence and empowerment and encouraging activism among LGBTQI+ people. At the individual level, the affirmation of legal equality is also having positive on mental health, self-esteem and overall wellbeing.
By sparking discussion of LGBTQI+ issues from a rights perspective, the ruling also gave more visibility to CMRSL’s litigation work. This got other organisations thinking about joining forces to champion human rights. Several organisations have already agreed to join or play a part in an ongoing anti-discrimination legal case, JM and CMRSL vs The Inspector General of Police and Others. We’re now hoping for more help from non-traditional allies, or those who were previously not involved in LGBTQI+ issues.
What challenges will remain even if the interim ruling is made permanent?
Despite the protection provided by the interim order, LGBTQI+ people in Kenya will continue to face challenges. Social stigma and prejudice persist and LGBTQI+ people continue to face hostility on a daily basis. Conservative discourse from religious, political and cultural leaders exacerbates the situation. Many LGBTQI+ people experience a lack of acceptance and inclusion and are often ostracised by their families.
As well as restricting access to health and other services and life opportunities, sometimes forcing people to take desperate measures to survive, prejudice puts a huge strain on people’s mental health. Many LGBTQI+ people suffer from stress, trauma, higher rates of depression, anxiety, substance abuse and suicide.
Violence and hate crimes, particularly against transgender people, won’t disappear overnight. But we hope court decisions such as the recent protection order will act as a counterbalance to anti-rights trends. The court that granted the order had the opportunity in other cases we brought to hear the testimony of three gay men subjected to degrading forced anal examinations before being charged in criminal cases. We hope these previous hearings have made the court more aware of what LGBTQI+ people go through, and will react by further protecting our rights.
How else is Kenyan civil society working to defend LGBTQI+ rights, and what international support does it need?
Kenyan civil society is actively engaged in several initiatives to defend LGBTQI+ rights. These include forming consortia, coalitions and networks to amplify the voices of LGBTQI+ people and undertaking strategic litigation and advocacy to challenge discriminatory laws. Public awareness campaigns aim to change societal attitudes and increase acceptance of LGBTQI+ people. Lobbying and engagement with policymakers seek to influence legislation and policy. Civil society organisations also document and report on human rights violations and abuses against LGBTQI+ people and highlight them at the global level.
To continue this work, Kenyan LGBTQI+ activists need various forms of international support. Financial support is crucial for LGBTQI+ organisations such as CMRSL to maintain operations, run advocacy campaigns, provide services and support legal battles. Many of our cases are currently being handled by volunteers without any funding.
Diplomatic and soft power efforts are also needed to engage the Kenyan government, coupled with deterrent measures such as denying visas to those who incite violence against LGBTQI+ people while enjoying the freedom and safety of democratic countries in Europe and North America.
Support for civil society groups that speak out against violations of the human rights of LGBTQI+ people is also essential. Many human rights organisations don’t speak out against these violations, either because they don’t view LGBTQI+ people as worthy or because they don’t want to jeopardise their work. Most won’t work with LGBTQI+ organisations. International organisations can help by funding research, providing expertise and disseminating reports to highlight the situation of LGBTQI+ people in Kenya.
There’s a need for capacity strengthening through training, development and mentorship for LGBTQI+ activists and organisations. Support for policy and legal advocacy efforts to reform discriminatory laws through technical assistance, model legislation and advocacy in international forums can drive long-term change. Support and expertise are also needed to enable the use of international reporting mechanisms such as the Universal Periodic Review process at the United Nations Human Rights Council.
Civic space in Kenya is rated ‘obstructed’ by the CIVICUS Monitor.
Get in touch with the Centre for Minority Rights and Strategic Litigation through its website or Facebook page, and follow @CMRSLTrust on Twitter.
