Abstract
SUMMARY 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. Key words: right to privacy; Constitution of Kenya; rights of LGBT+ persons; open and democratic society; criminalisation of same-sex relationships; right to marry
Highlights
Afforded enhanced protection in the current Constitution promulgated in 2010,1 the enjoyment of the right to privacy in Kenya is not free from controversy
Summary: This article argues that the provisions of the Kenyan Penal Code 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
We demonstrate that there is nothing in the drafting history of the Constitution of Kenya, 2010 that would mandate the imposition of criminal sanctions for consensual sex between same-sex adults
Summary
Afforded enhanced protection in the current Constitution promulgated in 2010,1 the enjoyment of the right to privacy in Kenya is not free from controversy. We further discuss the clamour for a new Constitution and the expansive constitutional review process that led to the promulgation of the current Constitution in 2010 This background is important for understanding the origin, character and scope of two provisions, namely, article 31 of the Constitution providing for the right to privacy and article 24 setting out the requirements for the limitations of fundamental rights. The validity and scope of the right to privacy of LGBT+ persons in Kenya may be proved through a rigorous interpretation of the Kenyan Constitution, the legitimacy of which in
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