A ruling in the case was originally scheduled Friday, but the court in Nairobi postponed the decision until May 24, saying it needed more time because its judges were busy and were still working through voluminous files in the case.
Kenya’s current law is one that people in other former British colonies will find familiar. The prohibition of “carnal knowledge against the order of nature” is repeated verbatim in the penal codes of dozens of them. Some are asking whether those Victorian-era words and morals belong in modern constitutions that also enshrine equality and freedom of expression.
Courts in India and in Trinidad and Tobago recently struck down identical clauses, and judges’ rulings from those countries are being considered in Kenya.
Kenya would not be the first country in Africa to legalize homosexuality, and probably would not be the last, either. Homosexuality is a major taboo across much of the continent, where most people adhere to either Christianity or Islam. But while legal processes are resulting in greater rights for LGBT people in some countries, others in Africa retain some of the harshest punishments in the world for homosexual conduct.
Below is a look at where some of Africa’s countries stand.
South Africa: Africa’s most liberal country was an early actor in favor of LGBT rights. When South Africa transitioned to democracy after the apartheid system was dismantled in 1994, it was the first country in the world to include sexual orientation in its anti-discrimination laws. In 2006, it legalized same-sex marriage. LGBT people from neighboring countries have long sought refuge in South Africa due to its legal protections.
Uganda: Uganda provoked international outrage in 2014 with the passage of a law that said those convicted of “aggravated homosexuality” could be sentenced to life in prison. Western countries threatened to stop providing the Ugandan government economic assistance, and some followed through. Thousands of LGBT Ugandans became refugees in 2014 as the debate around the law sparked persecution and numerous murders. Eight months after it was passed, the law was annulled, reverting to the colonial-era one that still carries a possible seven-year sentence.
Botswana: Just one month after Kenya’s ruling, a high court in Botswana will hear a similar case to strike down the “carnal knowledge” clause in its penal code. Some LGBT rights activists believe that a favorable ruling in Kenya could provide the legal foundation for rulings in Botswana, Malawi and other countries.
Nigeria: Nigeria is also a former British colony, but in its federal system, different states have different penal codes. In its southern, largely Christian states, the colonial-era law remains and carries the same possibility of a 14-year sentence as in Kenya. In some northern states that have adopted sharia law, homosexual conduct can warrant the death penalty.
Angola: Most of Africa’s former Portuguese colonies — including Angola, Mozambique and Sao Tome and Principe — have decriminalized homosexuality, though not through court rulings. Instead, anti-sodomy laws were expunged by way of penal code reform, a much quieter and less contentious process. Sexual orientation is not mentioned in their new penal codes; it is rather the removal of its mention that has paved the way for equal legal rights.
Chad: Some countries have done exactly the opposite kind of penal code reform, adding sexual orientation where before it was absent. Chad and Burundi both did that recently, joining the majority of African countries in explicitly banning homosexual conduct.