A Kenyan court on Thursday upheld the use of anal examinations to ‘determine a suspect’s sexual orientation’, dismissing the argument that the procedure amounts to torture and degrading treatment.
Judge Mathew Emukule, of the Mombasa High Court, denied there was any right violated under the Kenyan constitution and international law and dismissed the case where 2 men sought a court ruling to stop forced anal examinations and HIV tests of men accused of being gay, after they had been subjected to the procedures.
The Judge said they should have sought an injunction at the time and that:
There was no violation of rights or the law, Mombasa High Court Judge Mathew Emukule said.
The men were arrested in February 2015 on suspicion of engaging in gay sex. If convicted, they could face 14 years in jail.
The Judge found “no violation of human dignity, right to privacy and right to freedom of the petitioners.”
These nature of the tests, have been discredited as ineffective and are considered torture: In their petition, the men said the anal examinations and HIV and hepatitis B tests they were forced to have amounted to being subjected to torture and degrading treatment.
Human rights defenders are shocked at the ruling and believe that the Judges homophobia led to the dismissal of the Constitutional rights of Kenyans. They believe that this will result in false accusations and leaves room for terrible abuse:
“I sat in court holding my chin in disbelief,” said Eric Gitari, the executive director of the Kenyan National Gay and Lesbian Human Rights Commission, which has supported the petition. He said the men will appeal.”
The two were arrested in a bar near Ukunda along Kenya’s Indian Ocean coast in February 2015 on suspicion of engaging in gay sex, which is a criminal offense in Kenya. They still face the charges and, if convicted, could face 14 years in jail.
The Plaintiffs are likely to appeal.