Court Compels Ministry of Health to Issue a Response to a Petition Seeking to Repeal Section 162 of the Penal Code

The High Court at Nairobi on 23 February 2018 ordered the Director of Medical Services to file a response to two cases seeking to declare the provisions of Sections 162 & 165(c) of the Penal as unconstitutional for violating the right to privacy and health among others. This order was prompted by the submissions made by the KELIN litigation counsel Ms Carolene Kituku who informed the court that The Kenya AIDS Strategic Framework (KASF); and the Kenya AIDS Response Progress Report, has listed men who have sex with men as a priority population vulnerable to HIV. She added that the same policy documents the ministry has acknowledged that legal barriers affect access to HIV services for the MSM community. The Director of Medical Services is expected to provide the court with more information on the two policy documents and the link between the Sections 162 and 165(c) of the penal code and HIV service delivery.

Earlier on 22 February 2018 the court received evidence from an expert witness Prof Lukoye Atwoli, an Associate Professor of Psychiatry at Moi University and Dean School of Medicine. He gave evidence on the psychiatric position on sexual orientation. In his testimony, Prof Atwoli impressed upon the court that criminalization of same sex sexual relations exacerbate HIV infection amongst men who have sex with men (MSM). Upon reexamination by Ms Carolene Kituku representing KELIN in the case, Prof Atwoli confirmed that the HIV prevalence amongst the MSM community is high because they are fearful of seeking medical treatment for fear of exposing criminal conduct and being prosecuted.

The case will proceed for further hearing on 1 March 2018 when the Interested Parties, Kenya Christian Professionals Forum and Senator Irungu Kang’ata who are opposing the petition will make their submissions.

To contribute to the discussion and for live updates follow KELIN on our social media platforms: Twitter: @KELINkenya and using hashtag #Repeal162

Court Documents

For more information contact:

Carolene Kituku

Advocate and Human Rights Counsel

Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)

4th Floor, Somak Building, Mombasa Road Tel +254202515790;

Email: ckituku@kelinkenya.org