Dilemmas in fusing justice, morality and human rights

What should the courts seek to uphold when prosecuting cases on homosexuality?


Petition No. 51 of 2015

Wangui Wachira
On June 16, 2016, the High Court of Kenya sitting in Mombasa ruled that the use of rectal examinations on alleged homosexuals was legal. Two men identified in the petition as C.O.I and G.M.N claimed that doctors at Mombasa’s Coast General Provincial Hospital, in collaboration with law enforcement officials, had violated their rights by subjecting them to forced rectal examinations, HIV tests, and other blood tests in February 2015.

The issue for determination before the court was whether rectal examination on the alleged homosexuals was unconstitutional.

Presiding judge, Matthew Emukule upheld the use of rectal examinations making the argument that there was no other way evidence could have been obtained. He found that there were sufficient grounds in Kenyan law for using the examinations to gather medical evidence of crimes that include rape and sodomy, which are illegal in the country. He further stated that he found no violation of human dignity, right to privacy and right to freedom of the petitioners.

My review of this case is neither intended to support gay rights nor uphold the decision of the honourable court, but rather to further the debate on justice, morality and human rights. Can the three co-exist or does the achievement of one hinder the realisation of the other(s)?

The law and homosexuality
Homosexuality is illegal in Kenya; well-codified laws back its criminalisation. Article 45(2) of the Constitution asserts that every person has the right to marry a person of the opposite sex, based on free consent of the parties. This provision only recognises heterosexual relationships as the only form of natural relationships.

The Penal Code, Part XV on offences against morality in Section 162(c), provides that any person who permits a male person to have carnal knowledge of him against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years.

The question before the court regarded the legality of anal examinations, also called rectal examinations, as proof of gay sex. The court was to determine whether the use of rectal examinations violated fundamental rights of the alleged suspects. The international community has termed the legalisation of the rectal examinations to be a violation of human rights. Conduct of the examinations has been viewed as subjecting the suspects to torture, ill and degrading treatment that strips them of their dignity.

In Article 27 of the Constitution on equality and freedom from discrimination, it provides that the state shall not discriminate directly or indirectly against any person on any grounds including sex, marital status, health status, belief, inter alia. Article 28 affirms the right to human dignity and the right to have that dignity respected and protected. Article 29 on freedom and security of a person asserts that every person has the right to freedom and security of the person which includes the right not to be subjected to torture in any manner, whether physical or psychological, treated or punished in a cruel, inhuman or degrading manner. Article 31 on the right to privacy provides that every person has the right to not have their person…searched”.

If it can indeed be proven that the conduct of rectal examinations amounts to an act of torture and degrading in nature, can one rightly argue that there was a gross violation of the rights and freedoms of the accused persons?

Torture and other forms of cruel, inhuman and degrading treatment or punishment are unequivocally prohibited, without exception, by the UN convention against torture. The UN committee against Torture, the UN special Rapporteur on Torture, and the UN Working Group on Arbitrary Detention, have stated that the practice of forced rectal examinations contravenes the prohibition against torture and ill treatment.

Instances where gay rights have been upheld
In 2014, a Ugandan court struck down a punitive anti-gay law; it, however, ruled on narrow technical grounds, preserving the possibility that the measure could be revived. The court ruled that the Anti-Homosexuality Act, which punished some homosexual behaviour with life in prison, was invalid because it had been passed by Parliament without a proper quorum.

In 2013, the Supreme Court of the United States (SCOTUS) struck down the 1996 Defence of Marriage Act (DOMA) on grounds that it was unconstitutional. The Act denied federal benefits to gay couples that were legally married in their states, including social survivor benefits, immigration rights and family leave. Justice Anthony Kennedy, writing for the majority in a 5-4 decision, said that the act wrote inequality into federal law and violated the Fifth Amendment’s protection of equal liberty. The court essentially did not rule on the constitutionality of gay marriages but the effect of the decision allowed same sex marriages to resume in the state of California. The message the court seemed to pass is that these marriages are relationships as well worthy of equal respect and that the rulings took the country closer to realising the Declaration of Independence that all men are created equal. 10 years earlier the court in Lawrence vs. Texas (2003) had struck down all anti-sodomy laws across the country. The US has so far legalised gay marriages.

In 2015, Kenyan High Court in Eric Gitari vs. Non-Governmental Organizations Co-ordination Board & 4 Others upheld the right to free association for gay and lesbian people. The claimant sought to register an NGO with the NGO board, the aim of which was to address the violence and human rights abuses suffered by the LGBTIQ people. The NGO board rejected the proposed names citing Section 163 and 165 of the Penal criminalised same sex conduct; the NGO board regulations also provided that an application would be rejected if such name in the opinion of the director was repugnant to or inconsistent with any law, or undesirable. The claimant sued on the grounds that his constitutional rights had been violated – particularly the freedom of association and the right to freedom from any form of discrimination.

Rectal examinations are forcibly conducted in many countries where consensual anal intercourse is considered a criminal act. They are conducted almost exclusively on males in an effort to “prove” that they are “homosexuals” despite the fact that anal intercourse is not a necessary determinant of homosexual activity. Medical personnel are called upon to conduct a digital examination of the anus using a gloved lubricated finger of the examiner as well as a visual inspection of the anal area and, sometimes, insertion of tubes of varying sizes.

The examination is performed with the presumption that there are characteristic signs that correlate with consensual anal intercourse, namely laxity of the anal sphincter. Forcibly conducted rectal examinations are usually initiated at the request of law enforcement officials, the prosecutor or the court, and conducted in the absence of informed consent or in circumstances where individuals are not capable of giving genuine informed consent or where refusal to give consent would be interpreted as self-incrimination.

The learned judge, in upholding the use of rectal examinations, stated that there was no other way evidence could have been obtained. In Common Law jurisprudence, illegally obtained evidence may be admissible in court. This is guided by the representation that “it matters not how you get it, if you steal it even, it would be admissible in evidence”.

In Lloyd v Mostyn (1842) Chief Justice Goddard stated that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is admissible, the court is not concerned with how the evidence was obtained. Like the learned judge opined, any reasonable man would too find conducting rectal examinations to prove homosexuality of males in this case material and essential.

The Sexual Offences Act, in Section 36 on evidence of medical or forensic nature, provides that where a person is charged with committing an offence under the Act, the court may direct that an appropriate sample or samples be taken from the accused person, to such conditions as the court may direct for the purpose of forensic and scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence. Evidence in sexual offences act such as rape and defilement requires proof of penetration.

In John Onzere Kambi vs. R (2013) was an appeal to quash the lower court’s judgment where the appellant had been convicted for the offence of defilement; the appellant, was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the charge were that the appellant “unlawfully and intentionally caused penetration of his genital organ (penis) into the genital organ (anus) of” the complainant. The honourable court in interpreting section 162 of Penal Code found that “carnal knowledge of another person against the order of nature, including the act of sodomy, also constituted defilement. When canvassing the appeal, the learned advocate for the appellant submitted that the medical evidence tendered by the prosecution pointed at the offence of sodomy and not defilement. The judge dismissing the appeal averred that at least, partial penetration of the complainant’s anal orifice constituted the offence. He therefore, found that the ingredients of the offence of defilement were proved beyond any reasonable doubt.

The Independent Forensic Expert Group is of the opinion that medico-legal implications of forcibly conducted rectal examinations may bear similarity to forcibly conducted virginity testing. This forcible determination of sexuality may be viewed in parallelism to HIV testing. Section 13 of the HIV and AIDS Prevention And Control Act prohibits against compulsory testing; it states that no person shall compel another to undergo a HIV test either as a precondition or for the continued enjoyment of employment, marriage, admission into educational institution, entry to travel out of the country or for provision of healthcare, insurance cover or any service.

Justice, morality and human rights
Justice means right in law; the dictionary meaning defines a just person as one who typically does what is morally right and is disposed to giving everyone his or her due. Morality on the other hand refers to beliefs about what is right and wrong behaviour. Scholars have found the nature of justice as both a moral virtue of character and a desirable quality of the political society, as well as how it applies to ethical and social decision-making. Justice is viewed as a moral and political concept.

The relationship between morality and justice can hardly be separated. For instance, the existence of laws that serve to defend basic values such as laws against murder, rape fraud and defamation prove that law that enforces justice and morality can work hand in hand. Morality can influence the law in the sense that it can provide the reason for making whole groups of immoral actions illegal. Law can be a public expression of morality, which codifies in a public way the basic principles of conduct that a society accepts. In that way, it can guide the educators of the next generation by giving them a clear outline of the values society wants taught to its children. Therefore what is just is moral and what is moral is just.

Religious texts, mainly the Bible and the Quran, too condemn homosexuality.

At paragraph 121-122 of the Eric Gitari case (supra), the three-judge bench had the following to say: “The Board and the Attorney-General rely on their moral convictions and what they postulate to be the moral convictions of most Kenyans. They also rely on verses from the Bible, the Quran and various studies, which they submit have been undertaken regarding homosexuality. We must, however, emphasise that no matter how strongly held moral and religious beliefs may be, they cannot be a basis for limiting rights: they are not laws as contemplated by the constitution. Thus, neither the Penal Code, whose provisions we have set out above, which is the only legislation that the respondents rely on, nor the religious tenets that the Board cites, meet the constitutional test for limitation of rights”. At paragraph 104 the bench submitted: “However reprehensible we may find their sexual orientation, we must accord them the human rights which are guaranteed by the constitution to all persons, by virtue of their being human, in order to protect their dignity as human…”

In Shaw vs. DPP (1962), the appellant published a ‘ladies directory’, which listed contact details of prostitutes, the services they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed. The appeal was dismissed. The House of Lords in effect created a new crime.

Lord Reid dissenting stated that: “Even if there is still a vestigial power of this kind, it ought not, in my view, to be used unless there appears to be general agreement that the offence to which it is applied ought to be criminal if committed by an individual.

Notoriously, there are wide differences of opinion today as to how far the law ought to punish immoral acts that are not done in the face of the public. Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that. When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread, it is not for the courts to rush in.”

In Pearce v. Brooks (1866), the plaintiff had sued the defendant, a common prostitute, for the price of a carriage with which he had supplied her, well knowing she was going to use it for the purposes of her calling. It was held that immorality vitiates a contract;
hence he could not recover the price.

Homosexuality is a hush-hush topic in the streets, homes and the corridors of justice. In the African society it was considered a taboo hence the strict laws criminalising it today. The courts in 2015, when allowing Eric Gitari to have gay rights NGO registered, may have loosened the reins holding public morality; it was an issue of granting the right to freedom of association. Justice Emukule’s ruling, however, infringes on the very rights the court upheld – freedom from torture, degrading treatment as well as the right to human dignity. Can his judgment be rightly referred to as a claw-back judgment?


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