Kenyan court decides forced anal exams to “prove” homosexuality are constitutional
High court judge rejects constitutional challenge brought by two men subjected to torturous exams under duress
A Kenyan court has rejected a challenge from two men arrested on suspicion of being gay, ruling that authorities may perform anal exams in order to obtain evidence of homosexuality.
The practice, which is fairly uncommon in Kenya but occurs regularly in neighboring Uganda, is based on a widely-discredited theory promoted by a nineteenth-century forensic doctor who claimed that the anuses of men who engaged in receptive anal sex would demonstrate particular telltale characteristics.
The challenge to Kenya’s use of anal examinations, as well as forced testing for HIV and Hepatitis B, was brought by two men who were arrested for being homosexual. Homosexuality is criminalized in the country, and can carry a prison sentence of up to 14 years.
According to the National Gay and Lesbian Human Rights Commission (NGLHRC) and Human Rights Watch, both men had been forced to sign consent forms allowing for “medical examinations” — without knowing what such examinations would entail — while in police custody. The men, known as C.O.I. and G.M.N., are the first known to be subjected to anal exams for homosexuality.
Typically, the examinations involve doctors or medical personnel inserting fingers or foreign objects into a subject’s anus, or examining the tone or coloration of the anal region. The Independent Forensic Experts Group has said the exams not only violate medical ethics, but have no basis in scientific fact.
Human rights advocates have compared the practice to torture and labeled it a form of state-sponsored rape. The United Nations Committee Against Torture has blasted other countries, including Cameroon, Egypt and Tunisia, for engaging in the practice and has called for the cessation of the exams.
In the Kenyan High Court ruling, Judge Anyara Emukule said that “there was no other way evidence could have been obtained to ascertain that they are gay without carrying out anal analysis,” reports Agence France-Presse. It prompted significant criticism from various human rights organizations, with Amnesty International condemning the ruling as “shocking in its disregard for international human rights obligations.”
“This ruling is a devastating precedent that has now heightened the risk and fear of similar anal testing on many lesbian, gay, bisexual, transgender, intersex and queer persons in Kenya,” Eric Gitari, the executive director of NGLHRC, said in a statement. “Suspecting someone of being gay should not be grounds for stripping them of their dignity and their fundamental rights.” The NGLHRC, which is representing the two men, has filed an appeal of Judge Emukule’s ruling.
“The ruling is a setback, but it does not change the Kenyan government’s obligations under international human rights law,” said Neela Ghoshal, a senior researchers on LGBT rights for Human Rights Watch. “Kenyan authorities should abandon these abusive practices and, if domestic law permits them, the law should be changed.”
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