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U.S. State Department Human Rights Report Confirms Kenya Fails and Abuses LGBTI Refugees and Asylum Seekers

By Melanie Nathan, April 22, 2024


The U.S. State Department Bureau for Democracy, Human Rights, and Labor released its 2023 Human Rights report for all countries today, including the Kenyan Human rights report for 2023.. Last year African Human Rights Coalition (AHRC) reported that Kenya, despite its international commitment to the Refugee Convention, had defied its obligations and refused to continue to register or process LGBTQI+ refugees and asylum seekers. This is now confirmed by the current 2023 Human Rights Report for Kenya.


This has proved to be extremely onerous given the forced displacement of Ugandan, Burundian and Congolese LGBTQI+ people, including one we are aware of from Yemen, and from other countries. Last year after this became clear many LGBT refugees fled Kenya for South Sudan and other countries to try and pursue protection and the solutions that Kenya was not providing.


Uganda's gay, bisexual and lesbian and trans community are fleeing the 2023 Kill the Gays Bill (Anti-Homosexuality Act 2023 (AHA)). All those fleeing the resulting persecution and violence, had little to no choice but to seek protection and hope for resettlement through acquiring refugee mandates in Kenya. The reasons for Kenya's refusal to continue to process refugees, given that several had previously been resettled abroad, through Kenya, are multi faceted and complex.


The report notes with regard to LGBTQI+ asylum seekers/ refugees:


"The law provided for the granting of asylum on the basis of persecution related to a person’s sexual orientation or gender identity, but the government generally did not complete case processing of lesbian, gay, bisexual, transgender, and queer asylum seekers."


"Abuse of Refugees and Asylum Seekers: Abuse by police, including detention of asylum seekers and refugees, occurred, often due to lack of awareness and understanding of the rights afforded to those holding refugee or asylum seeker documentation or those who entered the country and were apprehended before obtaining asylum seeker documents. Most detainees were released after a court appearance or intervention by local legal aid organizations such as the Refugee Consortium or Kituo Cha Sheria.


Gender-based violence against refugees and asylum seekers was a problem, particularly for vulnerable populations, including women, children, and lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons. Reported incidents included domestic violence, rape, sexual assault, physical assault, psychological abuse, female genital mutilation/cutting (FGM/C), and early and forced marriage, particularly of Sudanese, South Sudanese, and Somali girls. Most urban refugees resided in informal settlements, where insecurity and gender-based violence were rampant."


The report notes with regard to LGBTQI+ People in Kenya:

ACTS OF VIOLENCE, CRIMINALIZATION, AND OTHER ABUSES BASED ON SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR SEX CHARACTERISTICS


Criminalization: The penal code criminalized “carnal knowledge against the order of nature,” which was interpreted to prohibit consensual same-sex sexual conduct, and it specified a maximum penalty of 14 years’ imprisonment if convicted, as well as seven years for “attempting” such conduct. The law criminalized acts of “gross indecency” between men, whether in public or in private, with five years’ imprisonment. Police detained persons under these laws, particularly persons suspected of working in commercial sex, but released them shortly afterward.


LGBTQI+ organizations reported police more frequently used general public order laws (for example, disturbing the peace) to arrest or harass LGBTQI+ individuals. NGOs reported police frequently harassed, intimidated, or physically abused LGBTQI+ individuals in custody. They also reported police threatened gay men while in custody with forced anal examinations, a medically discredited practice with no evidentiary value that was outlawed in 2018.

Violence and Harassment: LGBTQI+ organizations reported police failed to prevent harassment against LGBTQI+ individuals during March anti-LGBTQI+ protests in coastal communities. They also reported some elected politicians and religious leaders incited violence and harassment against LGBTQI+ individuals in public statements and on social media during the year.


Nonstate actor violence against LGBTQI+ individuals was widespread. The KNCHR received at least 60 reports from LGBTQI+ persons who believed they were at risk of being attacked during protests in March and September.


Civil society organizations reported evictions of LGBTQI+ persons following anti-LGBTQI+ protests. For the 2022 killing of Sheila Adhiambo Lumumba, a nonbinary member of the LGBTQI+ community, police charged a suspect who pleaded guilty.

Discrimination: The law did not explicitly protect LGBTQI+ persons from discrimination based on sexual orientation, gender identity or expression, or sex characteristics, and it did not recognize LGBTQI+ individuals, couples, or their families. The law did not specifically recognize or protect the rights of LGBTQI+ persons in housing, employment, education, or health care. LGBTQI+ organizations reported their caseload increased four-fold during the year as LGBTQI+ persons faced harassment, discrimination, evictions, blackmail, and extortion following a backlash spurred by the February Supreme Court ruling affirming the right of LGBTQI+ groups to associate. LGBTQI+ persons reportedly faced discrimination in the workplace.


Although the country granted refugee status to persons who were persecuted due to sexual orientation or gender expression, some LGBTQI+ refugees faced stigma and discrimination, as well as delays in processing their asylum applications. They were often compelled to hide their sexual orientation or gender identity to protect themselves, especially among Somali refugee communities in Dadaab. National organizations working with LGBTQI+ persons offered support to refugees who were LGBTQI+, including access to safety networks and specialized health facilities. There were reports of community violence and intimidation against LGBTQI+ refugees during the year. UNHCR and NGO partners provided medical and other assistance for LGBTQI+ refugees when necessary, but legal accountability for perpetrators was lacking overall.

Availability of Legal Gender Recognition: The law allowed intersex persons to formally identify “intersex” or “I” as the third gender, but the law did not otherwise cover or normalize gender-nonconformity or nonbinary designations.

Involuntary or Coercive Medical or Psychological Practices: LGBTQI+ rights organizations reported an increase in so-called conversion therapy and corrective rape practices, including forced marriage, exorcism, physical violence, psychological violence, or detainment.


According to the KNCHR, intersex infants and children were subjected to harmful medical practices in an attempt to “normalize” them. In 2022 the country amended the Children’s Rights Act protecting children from unnecessary harmful genital surgeries. The KNCHR reported it received two complaints of harmful medical practices on intersex children during the year.

Restrictions of Freedom of Expression, Association, or Peaceful Assembly: Authorities permitted LGBTQI+ advocacy organizations to register and conduct activities. In February, the Supreme Court struck down a lower court ruling that denied LGBTQI+ organizations the right to register as NGOs and upheld its decision in September, thus affirming the groups’ constitutional right of association.


Authorities restricted freedom of expression for LGBTQI+ content through a law that regulated distribution and broadcasting of content to the public. In April, parliament passed a non-binding motion banning discussion and debate of LGBTQI+ matters.


OR VIA PDF;


528267_KENYA-2023-HUMAN-RIGHTS-REPORT
.pdf
Download PDF • 311KB

PIC; COPYRIGHT AHRC, UGANDAN LGBTQI+ REFUGEES IN KAKUMA CAMP SHARING A PRIDE MEAL.




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