The Right to Privacy under the Constitution of Kenya and the Criminalisation of Consensual Sex between Same-Sex Adults
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Date
2021
Authors
Koske, Nicole Treyson
Journal Title
Journal ISSN
Volume Title
Publisher
AFRICAN HUMAN RIGHTS LAW JOURNAL
Abstract
This article argues that the provisions of the Kenyan Penal
Code (sections 162 and 165) criminalising consensual sex between
partners of the same sex limit the right to privacy enshrined in article
31 of the Constitution of Kenya of 2010. This limitation is not justifiable
according to the Bill of Rights limitation clause in article 24 of the
Constitution. Article 45(2) of the Constitution, which provides for a right
to ‘marry a person of the opposite sex’, also does not justify this limitation.
Embracing the idea of an open and democratic society, the Constitution
precludes the state from imposing upon the individual moral choices,
provided that those choices do not harm others. Therefore, the decision
whether or not consensual sex is moral must be left to the individual
concerned. By refusing to declare sections 162 and 165 unconstitutional
in 2019, the High Court of Kenya misinterpreted the Constitution and
consequently failed in its mandate to uphold the right to privacy of
homosexual persons in Kenya.
Description
Article
Keywords
right to privacy, Constitution of Kenya, rights of LGBT+ persons, open and democratic society, criminalisation of same-sex relationships, right to marry
Citation
Koske, N. T., & Milej, T. (2021). The right to privacy under the Constitution of Kenya and the criminalisation of consensual sex between same-sex adults. African Human Rights Law Journal, 21(1), 417-440.