Any person in Kenya can now be legally tortured in order to find out if they are gay.
The High Court has ruled ‘anal probe torture’ is legal and is a ‘reasonable’ way to prove the crime of homosexuality today (16 June).
Mathew Emukule, the Mombasa High Court judge, denied there was any right violated under the Kenyan constitution and international law and dismissed the case.’I find no violation of human dignity, right to privacy and right to freedom of the petitioners,’ he said.
Two men had sought a court ruling to stop these tests for homosexuality after they were arrested in February 2015 on suspicion of engaging in gay sex. If convicted, they could face 14 years in jail.
These ‘tests’ involve examining someone’s anus to see if they had been penetrated, check for traces of sperm and taking a picture to ‘study’ the shape of the hole. If it is wider, the more ‘likely’ the person has engaged in gay sex, according to the widely discredited test from the 19th century.
Forbidden under international law, they are widely known across Africa as the ‘tests of shame’.
And now human rights activists have said if a person is suspected of being gay someone can call the police, and that person can be arrested. If they refuse to submit to the torture, the court has ruled it is legal to force the torture on them and then charge them with suspicion of ‘unnatural’ sex.
‘I was absolutely devastated and shocked. It was very unexpected. I had presumed, with faith and belief, the High Court would deliver a very robust upholding of the constitution,’ Eric Gitari, director of the National Gay and Lesbian Human Rights Commission, told Gay Star News.
‘Today we filed our notice of appeal. We’re hoping for a just and fair judgement.’
Gitari accused the judge of being ‘deliberately homophobic’ and was abusing his judicial powers to express his personal opinion. In Emukule’s ruling, he gave a long rant about how the food is processed by the human body. He proclaimed the ‘mouth and the anus are not sexual organs’ and compared ‘sodomists’ to dogs.
It was a major surprise as the court date was postponed due to the shootings in Orlando.
‘Right now if anyone is rumored to be gay, anyone can inform the police and that person can be forced to be anally tested. If they refuse to go to anal testing, then they will be forced,’ Gitari told GSN.
‘Every person who is believed to be gay is vulnerable to blackmail and extortion. It’s an open field for discrimination.’
He added: ‘We thought he’d be compassionate but he just went ahead. This is confirming to the country to treat gay people as less than human.’