(Nairobi) – A Kenyan Court has ruled that forced anal examinations and forced HIV and Hepatitis B tests of men suspected of homosexual conduct are constitutional, the National Gay and Lesbian Human Rights Commission (NGLHRC) and Human Rights Watch said today. The deeply disappointing ruling would allow the government to continue these abusive practices and to use the test results as “evidence” in criminal prosecutions for consensual same-sex conduct.
The ruling, by the Mombasa High Court, is a blow to petitioners who rightly argued that the forced anal examinations they were forced to endure are a form of cruel, inhuman, and degrading treatment that can often amount to torture. The case was brought by two men who were subjected to forced anal exams, HIV tests, and Hepatitis B tests at Mombasa’s Madaraka Hospital in February 2015.
“This ruling is a devastating precedent that has now heightened the risk and fear of similar anal testing on many lesbian, gay, bisexual, transgender, intersex and queer persons in Kenya,” said Eric Gitari, executive director of NGLHRC. “Suspecting someone of being gay should not be grounds for stripping them of their dignity and their fundamental rights.”
The court accepted the argument put forward by government respondents in the case that the medical examinations were reasonable and were performed in accordance with the law. The court also ruled that the two men consented to the examinations through the lawyer who represented them at the time. Petitioners maintain that they had no idea what “medical examinations” they were meant to undergo until they arrived at the hospital, and that they signed consent forms only under duress while in police custody. They were reportedly taken to the hospital in handcuffs to have the tests conducted.