Court in country where same-sex relations are a crime dismisses argument that exam is torture and degrading treatment

This article is more than 4 years old

This article is more than 4 years old

A Kenyan court has upheld the use of anal examinations to determine a suspect’s sexual orientation, dismissing the argument that the procedure amounts to torture and degrading treatment.

There was no violation of rights or the law, Mombasa high court judge Mathew Emukule said on Thursday. “I find no violation of human dignity, right to privacy and right to freedom of the petitioners,” he said.

Two men had sought a court ruling to stop enforced anal examinations and HIV tests of men accused of being gay after they were subjected to the procedures.

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The two were arrested in a bar near Ukunda, a town along Kenya’s Indian Ocean coast, in February 2015 on suspicion of engaging in homosexual sex, a criminal offence in Kenya. They still face the charges and, if convicted, could be jailed for 14 years.

In their petition, the men said the anal examinations and HIV and hepatitis B tests they were forced to have amounted to torture and degrading treatment.

The judge said the petitioners should have used their lawyers to seek injunction orders to avoid undergoing the tests.

“I sat in court holding my chin in disbelief,” said Eric Gitari, the executive director of the Kenyan National Gay and Lesbian Human Rights Commission, which has supported the petition. He said the men would appeal.

“It’s so painful when we are trying to encourage the gay community to go to court to affirm their rights; the courts are instead affirming violation of their rights,” Gitari said.

The judgment means that someone can be arrested on a rumour that they are gay and subjected to these tests, he said. “Do we want to use the nation’s scarce resources on this?”

Amnesty International condemned the ruling. “Forcible anal examinations of men suspected of same-sex relationships is abhorrent, and violates the prohibition of torture and other ill-treatment under international law. They should not be allowed to continue,” said director for East Africa, Muthoni Wanyeki.

“It is also absurd as the government has no business proving or disproving consensual homosexual activity. It’s a violation of the right to privacy.”