This linkage is not new, in May last year, the Kenya Human Rights Commission (KHRC) released a study assessing human rights conditions of Lesbian, Gays, Bisexuals, Transgender, Intersex , Queer (LGBTIQ) and other sexual and gender non conforming Kenyans. The report titled, the Outlawed Amongst Us found among other things that Sections 162 – 165 of the Penal Code continue to drive LGBTI persons particularly Men who have Sex with Men (MSMs) underground, beyond the reach of health services, for fear of prosecution.
In seeking treatment particularly for STIs, the MSM expose their sexual practices to health workers and thereby the attendant risk of legal prosecution. In an atmosphere where the homosexual population is denied basic rights, from privacy rights to freedom from harassment and persecution; gays and lesbians are driven underground where sex is furtive and the thought of testing, prevention, and treatment is a scary anathema. This KHRC report linked these sections of the law, as a ‘furtherance of HIV spread.’
LGBTIQ focused institutions in Kenya like Gay Kenya and ISHTAR MSM which deal with human rights inclusive of sexual and reproductive rights of gay men in Kenya have found that providing safe-sex information for the MSM is construed by many in HIV programming as providing information for commission of a felony. Reports from the government funded National Aids Control Council (NACC) show a higher prevalence of HIV among sexual minorities such as men who have sex with men in comparison with other groups. According to a 2010 NACC report, 1,500 MSM get infected with HIV each year with 60% of them engaging in heterosexual with unsuspecting women. Some of these men are in heterosexual marriages.
To curb the spread of HIV spread, improve health service delivery and also in enhance quality health services, NACC has in its 2010-2013 strategic plan advised its own government to decriminalize homosexual conduct. A similar call that was made by the state funded Kenya National Commission on Human Rights (KNCHR) in its 2012 report on reproductive rights in Kenya whereby the KNCHR recommended the decriminalization of homosexual conduct in a bid to improve reproductive and sexual health rights of all Kenyans.
The biggest annual AIDS conference is now closed, and like many before, we must move from the board rooms, the conference halls to finding solutions to the reality of many Kenyans, heterosexual, homosexual, bisexual and all sexuals. Truth is, a lot of our population is in a long sexual chain, and those who are not, have loved ones and colleagues who are. We might not all be infected, but we are affected; emotionally, sexually, economically, culturally or otherwise. Whether we see it or not, if we are honest we will own up to the fact that there is no need to retain structural and legal barriers to HIV/AIDS programming which barriers also serve to institutionalize human rights violations against LGBTI persons.
It is basic humanity that, especially for the young people, the 18-26 age bracket who have the highest rate of infection that – If you spend your life being told you are a second class citizen, you have less motivation to take care of yourself and you’re more likely to take risks with your health. We all don’t have equal strengths to take care of ourselves, which is why we have constitutions and laws to enhance our human potential through protections from discrimination, stigma, shame and invasion of dignity. Sadly for most gays and lesbians, this is not achieved.
The humanists once said that humanity has a constant search for objective truth, with the understanding that new knowledge and experience constantly alter our imperfect perception of it, and: a conviction that with reason, an open exchange of ideas, good will, and tolerance, progress can be made in building a better world for all present and for future generations. Let us in the least listen to science, to medicine, to research and make laws that will enhance our healthy survival. In the Lancet Journal, June 2012, Archbishop Desmond Tutu asked for the decriminalization of homosexual conduct to combat HIV spread. His clarion call summarizes my appeal, that " I have no doubt that in the future, the laws that criminalise so many forms of human love and commitment will look the way the apartheid laws do to us now-so obviously wrong. Such a terrible waste of human potential! "
Eric Gitari is a human rights lawyer and co-founder of the National Gay and Lesbian Human Rights Commission