KENYA-SOGI-TBs-CCPR

Concluding Observations on Report 4 (2021) (Link)

3. The Committee welcomes the following legislative, institutional and policy measures taken by the State party:

…(b) The enactment of the Registration of Persons (Amendment) Bill of 2019, which provides for the legal recognition of intersex persons;

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Non-discrimination

10. The Committee is concerned about the lack of comprehensive anti-discrimination legislation, in line with article 27 of the Constitution and the provisions of the Covenant, and whether that could impede access to remedies for victims of discrimination. The Committee also notes with concern a lack of information from the State party about the steps taken to address stigma and discriminatory attitudes towards multiple groups and promote sensitivity and respect for diversity among the general public (arts. 2 and 26).

11. The State party should:

(a) Adopt comprehensive legislation prohibiting discrimination, including multiple, direct and indirect discrimination, in all spheres, in both the public and the private sectors, on all the grounds prohibited under the Covenant, including sex, sexual orientation, gender identity, religion, disability, albinism, socioeconomic status, HIV/AIDS status, ethnic and political affiliation or other status;

(b) Guarantee effective remedies for victims of discrimination in judicial and administrative proceedings;

(c) Take concrete steps, such as comprehensive awareness-raising campaigns and sensitization activities, to address stigma and discriminatory attitudes and promote sensitivity and respect for diversity among the general public.

Sexual orientation, gender identity and intersexuality

12. The Committee is concerned about:

(a) Sections 162 and 165 of the Penal Code criminalizing same-sex relations, and the High Court ruling in 2019 that declared those provisions to be constitutional;

(b) The State party reporting that that prohibition is based upon same-sex relations being unacceptable to Kenyan culture and values but not providing information about any measures taken to address discriminatory attitudes and stigma among the general public;

(c) Reports of lesbian, gay, bisexual, transgender and intersex individuals experiencing harassment, discrimination and violence, including violations perpetrated by law enforcement officers and vigilante groups, and facing barriers to access justice and remedies;

(d) Incidences of children being expelled from schools on the basis of actual or suspected sexual orientation and/or gender identity;

(e) Cases of non-urgent, irreversible surgical procedures, infanticide and abandonment among intersex children (arts. 2, 6, 7, 17 and 26).

13. The State party should take appropriate steps to:

(a) Amend all relevant laws, including sections 162 and 165 of the Penal Code, to decriminalize consensual sexual relations between adults of the same sex;

(b) Address discriminatory attitudes and stigma towards lesbian, gay, bisexual, transgender and intersex persons among the general public, including through comprehensive awareness-raising and sensitization activities;

(c) Intensify its efforts to eradicate all forms of discrimination, harassment and violence on the basis of sexual orientation and gender identity and provide access to justice and remedies for victims;

(d) Take immediate action to address the expulsion of children from schools on the basis of their actual or suspected sexual orientation and/or gender identity;

(e) Strengthen measures to end the performance of irreversible medical acts, especially surgical operations, on intersex children who are not yet capable of giving their full, free and informed consent, except in cases where such interventions are absolutely necessary for medical reasons. Access to effective remedies for victims of such interventions should also be ensured.

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Liberty and security of person

32. The Committee is concerned about reports of the use of arbitrary arrest and detention, including among human rights defenders, journalists, civil society representatives and lesbian, gay, bisexual, transgender and intersex individuals. It is also concerned about the compatibility of provisions in the Prevention of Terrorism Act (Act No. 30 of 2012), which allows suspects to be held in pretrial detention for up to 90 days, with article 50 of the Constitution and the provisions of the Covenant. The Committee welcomes efforts made by the State party to provide comprehensive training to officers but regrets the lack of information provided about the number of investigations, convictions and punishments undertaken following complaints of arbitrary arrest and detention, and about measures to ensure the promotion of civic space where individuals can meaningfully exercise and promote human rights in a safe environment (art. 9).

33. The State party should continue and strengthen efforts to reform the police force and provide training to judges, prosecutors, lawyers and relevant officers on national provisions and international human rights standards on liberty and security of person. They should amend the Prevention of Terrorism Act (Act No. 30 of 2012) to bring provisions on pretrial detention into line with article 50 of the Constitution and the provisions of the Covenant. The State party should also step up efforts to impartially investigate complaints of arbitrary arrest and detention and to punish such acts, and it should take additional measures to promote civic space, including by operationalizing the Public Benefits Organization Act (Act No. 18 of 2013), and adopting the model human rights defenders policy and action plan developed by the Kenya National Commission on Human Rights.

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Treatment of aliens, including refugees, asylum seekers and migrants

36. The Committee is concerned about:

(a) The delay in the enactment into law of the Refugee Bill of 2019, despite the legislative amendment process, which began in 2011, and the urgent need to replace provisions in the Refugees Act (Act No. 13 of 2006), in particular encampment provisions that oblige all refugees and asylum seekers in Kenya to reside in refugee camps and seek authorization to leave them;

(b) Clause 19 (2) of the Refugee Bill of 2019, which allows for broad exceptions to the principle of non-refoulement on the basis of public morality;

(c) The inclusion of prisons, police stations and remand homes in the Refugee Bill’s definition of refugee transit centres;

(d) Clause 23 (5) of the Refugee Bill, which compels all individuals who have filed an asylum claim to abide by all laws in Kenya and allows for the cancellation of asylum applications and removal from the State party’s territory of individuals who violate laws. The Committee is particularly concerned that lesbian, gay, bisexual, transgender and intersex refugees and asylum seekers could be subjected to refoulement on the de facto basis of their sexual orientation, given the continued illegality of same-sex relations;

(e) The detention of non-citizens solely for irregular entry into the country;

(f) Continued high levels of statelessness, including among children (arts. 2, 6, 7, 9, 13 and 26).

37. The State party should:

(a) Strictly uphold the principle of non-refoulement in both law and practice;

(b) Amend the Refugee Bill of 2019, including provisions that include prisons,

police stations and remand homes in the definition of transit centres, and clauses 19 (2) and 23 (5), to ensure its full compatibility with the Covenant;

(c) Pass an amended version of the Refugee Bill into law and effectively implement its provisions without delay;

(d) Stop the practice of detaining non-citizens solely for irregular entry into the country;

(e) Take concrete steps to reduce statelessness, in particular to prevent statelessness of children.

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Freedom of expression

42. The Committee is concerned about the lack of harmonization of the legal standards in the State party, including sections 132, 181 and 194 of the Penal Code, the Computer Misuse and Cybercrimes Act (Act No. 5 of 2018), the Prevention of Terrorism Act (Act No. 30 of 2012), the Kenya Information and Communications (Amendment) Act (Act No. 41A of 2013) and the Security Laws (Amendment) Act (Act No. 19 of 2014), with articles 33 and 34 of the Constitution and articles 19 and 20 of the Covenant. The Committee is also concerned that national legal provisions have been used to limit online expression, repress lesbian, gay, bisexual, transgender and intersex individuals, and quell criticism of the Government, including among human rights defenders, journalists and civil society organizations. It is further concerned about reports of interference with the free press and attacks against journalists and media workers during the period of the 2017 elections (arts. 19 and 20).

43. The State party should engage in a process of harmonization between all legal standards relating to freedom of expression, including online expression, and the provisions of the Covenant and articles 33 and 34 of the Constitution. The State party should ensure that any restrictions on the exercise of freedom of expression, including online expression, comply with the strict requirements of article 19 (3) of the Covenant. They should also take concrete steps to prevent any interference with the free press during the 2022 elections and protect journalists and media workers from all forms of harassment and violence.

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Concluding Observations on Report 3 (2012) (Link)

8. The Committee recalls its previous concluding observations (CCPR/CO/83/KEN, para. 27) and regrets that the Penal Code continues to criminalize sexual relations between consenting adults of the same sex. The Committee also regrets reports of acts of violence, harassment and abuse against lesbian, gay, bisexual, transgender and intersex (LGBTI) persons based solely on their sexual orientation or gender identity (arts. 2, 17 and 26).

The Committee reiterates its previous concluding observations (CCPR/CO/83/KEN, para. 27) and recommends that the State party decriminalize sexual relations between consenting adults of the same sex in order to bring its legislation in line with the Covenant. The State party should also take necessary steps to put an end to the social stigmatization of homosexuality and send a clear message that it does not tolerate any form of harassment, discrimination or violence against persons based on their sexual orientation or gender identity.

9. The Committee recalls its previous concluding observations (CCPR/CO/83/KEN, para. 15) and welcomes the enactment of the HIV and AIDS Prevention and Control Act, 2006 and the adoption of the National HIV and AIDS Strategic Plan of 2009/10 – 2012/13. The Committee, however, regrets the continued reports of high rates of deaths resulting from AIDS and the unequal access to appropriate treatment for those infected with HIV. The Committee also regrets reports of HIV/AIDS prevalence among homosexuals which is partly attributable to the laws that criminalize consensual same-sex relationships and the societal stigmatization of this group that hampers access to treatment and medical care by this group (arts. 2, 6 and 26).

The Committee reiterates its previous concluding observations (CCPR/CO/83/KEN, para. 15) and recommends that the State party take concrete measures to raise awareness on HIV/AIDS with a view to combating prejudices and negative stereotypes against people living with HIV/AIDS, including homosexuals. The State party should also ensure that persons living with HIV/AIDS, including homosexuals, have equal access to medical care and treatment.

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Concluding Observations on Report 2 (2005) (Link)

27. The Committee notes with concern that section 162 of the Penal Code continues to criminalize homosexuality (articles 17 and 26 of the Covenant).

The State party is urged to repeal section 162 of the Penal Code.

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Concluding Observations on Report 1 (1981) (Link)

[no mention]

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