Abstract

KOSKE, Nicole Treyson  and  MILEJ, Tomasz. The right to privacy under the Constitution of Kenya and the criminalisation of consensual sex between same-sex adults. Afr. hum. rights law j. [online]. 2021, vol.21, n.1, pp.417-440. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2021/v21n1a18.

This article argues that the provisions of the Kenyan Penal Code (sections 162 and 165) criminalising consensual sex between partners of the same sex limit the right to privacy enshrined in article 31 of the Constitution of Kenya of 2010. This limitation is not justifiable according to the Bill of Rights limitation clause in article 24 of the Constitution. Article 45(2) of the Constitution, which provides for a right to 'marry a person of the opposite sex', also does not justify this limitation. Embracing the idea of an open and democratic society, the Constitution precludes the state from imposing upon the individual moral choices, provided that those choices do not harm others. Therefore, the decision whether or not consensual sex is moral must be left to the individual concerned. By refusing to declare sections 162 and 165 unconstitutional in 2019, the High Court of Kenya misinterpreted the Constitution and consequently failed in its mandate to uphold the right to privacy of homosexual persons in Kenya.

Keywords : right to privacy; Constitution of Kenya; rights of LGBT+ persons; open and democratic society; criminalisation of same-sex relationships; right to marry.

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