Friday, June 17, 2016

Kenya High Court Justice Finds that Anal Exams Do Not Violate Human Dignity or Privacy

Homosexual acts in Kenya are punishable by up to 14 years in prison.

Justice Mathew J.A. Emukule of the Kenyan High Court in Mombassa has just dismissed a legal challenge to anal exams administered by the Kenyan Police to find people who may have violated the law. The judge dismissed claims that anal exams were a form of discrimination and that the exams were tantamount to torture. The AP News Agency reports that the judge found "no violation of human dignity, right to privacy, and right to freedom of the petitions."

Anal probing is an outdated 19th century practice that has been condemned as torture by the United Nations Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment, who stated in a January 2016 report that: “In States where homosexuality is criminalized, men suspected of same-sex conduct are subject to non-consensual anal examinations intended to obtain physical evidence of homosexuality, a practice that is medically worthless and amounts to torture or ill-treatment.” U.N. Doc. A/HRC/31/57, at 10, para. 36 (citing CAT/C/CR/29/4).

The two men will appeal the Mombassa High Court ruling finding that anal exams do not violate human dignity or the right to privacy. Their trial for allegedly having gay sex will reportedly continue.

Click here to read more about the case from the BBC.

And click here for a report from Pink News that discusses where else these discredited tests are practiced.

The High Court of Kenya has jurisdiction to hear all criminal and civil cases as well as appeals from lower courts.

Decisions of the High Court of Kenya are appealed to the Court of Appeal of Kenya, which is established under Article164 of the constitution of Kenya and comprises a maximum of 30 Judges who elect a President from among themselves. The Court of Appeal is decentralized and currently has six registries  (Nairobi, Mombasa, Nyeri, Kisumu, Nakuru and Eldoret).

Further appeals may be had to the Kenya Supreme Court, which has appellate jurisdiction over appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation. Appeals to the Kenyan Supreme Court can only be head as a matter of right where the case involves interpretation or application of the Constitution or a matter certified by the Supreme Court or the Court of Appeal as a case that involves a matter of general public importance. The Supreme Court may review a certification by the Court of Appeal and either affirm, vary, or overturn it.

Laws that criminalize sexual acts between consenting adults violate rights to privacy and non-discrimination under international human rights law. The Global Commission on HIV and the Law also determined that sodomy laws facilitate the spread of HIV/AIDS. In Caribbean countries with sodomy laws, for example, almost one in four men who have sex with men is HIV-positive; in Caribbean countries without sodomy laws, the rate is only one in fifteen men. The U.N. Human Rights Committee and other human rights mechanisms have urged states to repeal sodomy laws since the Committee’s 1994 landmark opinion in Toonen v. Australia, which found that sodomy laws violate the right to privacy.  At least seventy-six nations still have laws that criminalize and harass people on the basis of their sexual orientation and gender expression.

Mark E. Wojcik

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