Cablegate: Human Rights Trends in Kenya Pertaining to Sexual

DE RUEHNR #2702/01 3650621
O R 310620Z DEC 09



E.O. 12958: N/A

1. (SBU) Summary: Same sex relationships in Kenya are criminalized
as felonies, and individuals in such relationships face strong
public attitudes which stigmatize lesbian, gay, bisexual and
transgender (LGBT) relationships as "un-African" and "against the
order of nature." However, the Kenyan government has not to post's
knowledge prosecuted any individuals under the current
administration, government leaders have not politicized LGBT
issues, and the government has permitted LGBT advocacy
organizations to register and conduct activities. There is no
pending legislation specifically focused on LGBT issues. The
proposed Harmonized Draft Constitution defines marriage as solely
between a man and a woman, but also contains freedom from
discrimination and equal protection clauses which could be
interpreted to protect LGBT individuals. End summary.

2. (SBU) Officially, same-sex relationships are criminalized as
felonies in Kenya. The Kenyan Penal Code criminalizes "carnal
knowledge against the order of nature," which is interpreted to
prohibit homosexual activity, and specifies a maximum penalty of 14
years imprisonment. The use of coercion or force increases the
penalty to 21 years imprisonment, and a separate statute prescribes
a maximum 5 year sentence with possible corporal punishment for men
who seek or engage in sexual activity with other men. Despite
these provisions, there have been no reported prosecutions of
individuals for sexual orientation or consensual lesbian, gay,
bisexual or transsexual (LGBT) activity in recent years. LGBT
advocacy organizations, such as the Gay and Lesbian Coalition of
Kenya, have been permitted by the government to register and
conduct activities. Former President Moi used to make frequent
statements condemning homosexuality as un-African and a criminal
perversion; since his departure in 2002 politicians have generally
avoided discussing LGBT issues in public although many express
personal opposition in private.

3. (SBU) Kenyan LGBT individuals face greater social stigma than
official harassment. A recent article in Kenya's leading newspaper
summarized prevailing public opinion in this way: "It's hard to
imagine a Kenya where homosexuality is viewed as anything but a
moral and religious abomination. The majority still link it to
foreign influences or drug abuse, or dismiss it as a perverted
habit practiced in upper class social cliques." Christian and
Muslim leaders almost uniformly condemn LGBT activity as contrary
to their religious beliefs and evidence of immoral influences from
developed societies. In 2007 the Council of Imams and Preachers of
Kenya and other civic leaders condemned homosexuality and argued
against legalizing gay marriages. A group in Mombasa created the
Muslim Youth Pressure Group to oppose homosexuality in 2007.

4. (SBU) Despite strong social condemnation, discreet LGBT
activity is widespread and incidences of violence against LGBT
individuals rare. Although not a useful indicator of consensual
LGBT activity, a 2007 Kenya Aids Indicator Survey found that male
prostitution occurs throughout the country and that eighty-one
percent of the clients are Kenyan. These findings run contrary to
the perception that LGBT activity is concentrated in Coast province
and initiated by tourists. (Note: Both hetero- and homosexual
prostitution patronized by tourists is endemic in coastal resort
centers. End note.) In the past year, the Kenya National
Commission on Human Rights (KNCHR) has documented several incidents
of Muslim Imams calling for public beatings of homosexuals, but
these statements have not resulted in reported violence. KNCHR has
only documented one alleged instance of violence against an LGBT
individual this year, a case in which a lesbian couple were
assaulted in a Nairobi nightclub by other patrons.

5. (SBU) Kenya's media has played a mixed role relative to LGBT
rights. Religious media outlets, both Muslim and Christian, tend
to reflect the conservative views of clergy, while the
sensationalist "gutter press" report rumors of LGBT relationships
alongside other gossip stories. In contrast, the two largest
English language newspapers have run several articles condemning
social stigma and calling for equal rights for LGBT individuals.

6. (SBU) There is no pending legislation specifically focused on
LGBT issues. The Harmonized Draft Constitution, which is in the
midst of a process of political and public debate, defines marriage

NAIROBI 00002702 002 OF 002

as between a man and a woman, and would appear to implicitly
prohibit LGBT marriages. The clause states: "The family is the
natural and fundamental unit of society and the necessary basis of
social order. Every adult has the right to marry a person of the
opposite sex, based upon the free consent of the parties."

7. (SBU) Though limiting the prospects for legalization of LGBT
marriages, the draft constitution contains a bill of rights with
provisions that could be interpreted to protect LGBT individuals.
The bill of rights provides that "every person is equal before the
law and has the right to equal protection and equal benefit of the
law," and that "the State shall not discriminate directly or
indirectly against any person on any ground, including race, sex,
pregnancy, marital status, health status, ethnic or social origin,
colour, age, disability, religion, conscience, belief, culture,
dress, language or birth." Kenyan LGBT activists believe that
these provisions could be interpreted to protect LGBT rights, and
have petitioned for the non-discrimination clause to explicitly
reference sexual orientation and gender identity as protected
categories. Given social opposition to LGBT rights, such an
amendment is unlikely.

8. (SBU) Comment: Although Kenya's legal and social landscape is
clearly not LGBT friendly, discreet LGBT activity is tolerated and
leaders have not politicized LGBT issues. Post's contacts in the
LGBT human rights community do not expect that Kenya will follow
Uganda's example of introducing draconian anti-LGBT legislation.
End comment.

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