Psychiatrist among witnesses to testify in support of legalization of consensual same sex

Experts among them a psychiatrist will be called to testifying in a case seeking to legalize consensual same sex in support of the case.

The petitioners want the court to decriminalize sections of the penal code that make it illegal to have consensual same sex.

Through their lawyer senior counsel Paul Muite, the petitioner says the witnesses will table reports before the court to demonstrate the biological and social conditions that explains sexual orientation

Speaking before a three judge bench, Muite told the court that they will be calling a psychiatrist to tell the court more about sexual orientation and why the government should not regulate matters of intimacy.

In the petition filed by the director National Gay and Lesbian Rights Commission Eric Gitari argues that the sections 162 and 165 are discriminatory and contravenes various provisions of the constitution such as right to equality, freedom from

discrimination, human dignity, freedom and security of a person and right to privacy.

The Director however says that his petition has nothing to do with same sex marriage, does not seek the legalization of same sex marriage.

He adds that if his petition is successful, it will not have effect of mandating or requiring Kenya to recognize same sex marriage.

 “The petition only concerns the criminalization and severe punishment under the criminal law of a whole section of Kenyan society on account of the fundamental and innate characteristic of the sexual
orientation,” Muite said.

Gitari further argues that the law criminalizing relevant conduct such as unnatural and grossly indecent, are degrading.

Section 162 states that “Any person who – (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.

Section 165 states that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in
public or private, is guilty of a felony and is liable to imprisonment for five years.

The bench also consolidated the case with another petition filed by one John Mathenge and four others who are also seeking the same orders.

The case will be heard on February 22.