Kenya does not provide full legal recognition and protection of the rights of its lesbian, bisexual, transgender, and intersex (LBTI) communities. Sections 162 and 165 of the Kenyan Penal Code criminalise adult consensual same-sex relationships. The sections were legally challenged on the basis of their unconstitutionality in 2016. In 2019, Kenya’s High Court upheld the law as not discriminatory and stated it would, if abolished, open the door to same-sex marriage which is unconstitutional in Kenya.
Kenya does not explicitly recognise or protect the rights of transgender and intersex people. However, in 2019, Kenya became the first country in Africa to incorporate an intersex category into the national census.
The last submitted State party report was in 2016 and mentioned a recent judgment on trans rights: “Jurisprudence in compliance with CEDAW on transgender: This has been applied in the high court of Kenya at Nairobi judicial review division jr case no 147 of 2013, Republic v Kenya National Examinations Council and another ex parte Audrey Mbugua Ithibu.”
Moreover, The Kenyan Supreme Court in February 2023 in a 3-2 ruling said an LGBTQ and intersex rights group must be allowed to register as a non-governmental organisation. In their judgment, the Supreme Court judges held that, ‘(…) it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants.’ Importantly, they also ruled, ‘Given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not.’
The CEDAW Committee provided a SOGIESC-focused recommendation to Kenya at the 68th Session.
The Committee recommended that Kenya exercise due diligence to protect all women, including lesbian, bisexual, and transgender women and intersex persons, against discrimination by adopting comprehensive anti-discrimination legislation affording such protection; this was in line with the recommendation accepted by Kenya during the universal periodic review process in 2015 on the adoption of a comprehensive anti-discrimination law affording protection to all individuals.
The Committee noted with concern that there was a lack of comprehensive anti-discrimination legislation in the State party, including the absence of clear and complete protection against intersectional discrimination in the Constitution, and the fact that same-sex consensual relationships between adults remain criminalised.