On Thursday, a Kenyan appeals court ruled that the current practice of forcing men suspected of being gay or bisexual to submit to anal examinations designed to “prove” their homosexuality is unlawful.
The appeals court decision overturns a Kenyan High Court decision from 2016 involving the 2015 arrest and detention of two men suspected of engaging in homosexual sex acts, which are criminalized under Kenyan law and can carry a prison sentence of up to 14 years.
During their time in custody, the men, identified in court documents as C.O.I. and G.M.N., were forced to undergo anal examinations and were tested for HIV and hepatitis against their will. In its decision the High Court ruled that “there was no other way evidence could have been obtained to ascertain that they are gay without carrying out anal analysis.”
The National Gay and Lesbian Human Rights Commission, which defended the men, sued on their behalf, alleging that the practice of forced medical exams was unconstitutional, sparking an almost three-year-long court fight involving several appeals.
“We are thankful that the Appeal Court has put Kenyan citizens’ rights first,” Njeri Gateru, the head of legal affairs for the NGLHRC, said in a statement. “With this ruling, the judges are saying that we all deserve to be treated with dignity and afforded our basic rights, as enshrined in the Kenyan Constitution.
“The humiliation and pain caused by these useless anal examinations will follow our clients for the rest of their lives,” added Gateru. “However, we are emboldened to see our constitution at work, ensuring that all Kenyans have the right to dignity.”
The practice of forced anal exams, which is fairly uncommon in Kenya — particularly in comparison to some of its fellow African nations, like Cameroon, Egypt, Tanzania, and Uganda — is rooted in 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.
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. And human rights advocates have said the practice amounts to torture and have labeled it a form of state-sponsored rape.
In September 2017, the Kenya Medical Association, the leading professional body for doctors, passed a resolution condemning the use of forced anal exams, “even in the guise of discovering crimes.” The association issued an additional press release advising medical practitioners to adhere to the association’s Code of Ethics and Professional Conduct, even when dealing with patients in police custody.
“The ruling that forced anal exams violate Kenya’s constitution is of tremendous significance,” Neela Ghoshal, a senior LGBT rights researcher at Human Rights Watch, said in a statement. “The ruling affirms the dignity of the two Kenyan men who were subjected to these horrific exams, and it reinforces the understanding that the constitution applies to all Kenyans, regardless of their sexual orientation or gender identity.”
NGLHRC is currently involved in a separate case asking Kenya’s High Court to repeal sections of the country’s Penal Code that criminalize consensual homosexual acts. The next hearing in that case is scheduled for April 26.
The LGBTQ human rights advocacy group OutRight Action International praised the court of appeals’ ruling in a statement.
“Forced anal examinations amount to torture, and no one should ever be exposed to such a degrading and dehumanizing experience,” said Jessica Stern, the executive director of OutRight Action International. “The Kenyan Courts ruled in favor of international law and in favor of human dignity. Other countries should follow suit and put an end to this discredited practice.”
Editor’s Note: This story was updated to include reaction from Human Rights Watch.
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