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India's Decriminalization of LGBTI People Gives Hope in Looming Kenyan Case

On Thursday 5th September, 2018, the Supreme Court of India issued a historical ruling

reversing over 150 years of criminalization of the country’s LGBT community. The

judgment handed down by a five judge bench led by the country’s Chief Justice ruled

that Section 377 of India’s penal code, that made consensual same sex acts between

adults a crime, was unconstitutional.

A similar case, challenging sections of Kenya’s Penal Code that criminalize same sex

intimacy is currently before the High Court in Nairobi with a ruling expected in the near

future. The case which is before a three judge bench is backed by rights organisation,

the National Gay and Lesbian Human Rights Commission (NGLHRC).

Reacting to the Indian Supreme Court ruling, Ms. Njeri Gateru, Executive Director of

the NGLHRC said:

“The news out of India is truly something to celebrate and we congratulate our LGBT

family in India on this victory. Changing the law is a monumental step in beginning to

address the systemic violence targeting LGBT persons across the globe.

The Supreme Court’s insistence that colonial laws, cannot be used to continue to justify

oppression of one group is also very important. We must begin to reclaim our own

notions of fairness and equality as envisioned in the progressive Constitutions we have

passed since that dark colonial era.”

Laws such as those in India and Kenya are relics of British colonial history that saw

anti-sodomy laws introduced in many of its colonies. Currently, there are

approximately 71 countries across the world that criminalize same-sex relationships.

Recently, UK Prime Minister, Theresa May, apologized for her country’s role in the

criminalization of LGBT people across the Commonwealth.

In its ruling, the Supreme Court of India noted, among other things:

“... this case involves much more than merely decriminalising certain conduct

which has been proscribed by a colonial law​. The case is about an aspiration to

realise constitutional rights. It is about a right which every human being has, to live

with dignity. It is about enabling these citizens to realise the worth of equal


NGLHRC, which provides free legal assistance to LGBT individuals in Kenya, has

found that Sections 162, 163 and 165 of the Penal Code of Kenya are used to justify

continued violence and discrimination against the LGBT community and has long

advocated for decriminalization.

The next scheduled court date for its decriminalization challenge is September 20th in Nairobi.

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