"Adam," arrested in Kenya in February 2015 on homosexuality charges and subjected to a forced anal exam, sorts through police documents on his case. © 2015 Zoe Flood

(Nairobi) – A Court of Appeal in Mombasa, Kenya, ruled on March 22, 2018, that conducting forced anal examinations on people who are accused of same-sex relations is unconstitutional, Human Rights Watch said today. It was a resounding victory for lesbian, gay, bisexual, and transgender (LGBT) rights activists in Kenya and beyond.

The ruling reversed a 2016 High Court decision that had upheld the Kenyan authorities’ use of forced anal exams to attempt to provide evidence of homosexual conduct. The National Gay and Lesbian Human Rights Commission (NGLHRC), a nongovernmental organization based in Nairobi, filed a constitutional challenge after police arrested two men in Kwale County in February 2015 on charges of homosexuality, and subjected them to forced anal exams, HIV tests, and Hepatitis B tests at Mombasa’s Madaraka Hospital.

“The ruling that forced anal exams violate Kenya’s constitution is of tremendous significance,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “The ruling affirms the dignity of the two Kenyan men who were subjected to these horrific exams, and it reinforces the understanding that the constitution applies to all Kenyans, regardless of their sexual orientation or gender identity.”

The petitioners contended that forced anal testing is cruel, inhuman, and degrading treatment that can amount to torture. The exams usually involve doctors or other medical personnel inserting their fingers, and sometimes other objects, into the anus of the accused. In other cases, victims are ordered to strip naked and bend over or lie down with their feet in stirrups while doctors “visually” examine their anal regions.

Momentum has built in opposition to forced anal exams in recent years, in the countries where law enforcement makes use of the exams, and internationally. The Independent Forensic Experts Group has found that the exams, which are based on long-outdated 19th century medical theories,  are both medically worthless and a severe violation of medical ethics. Numerous United Nations (UN) agencies have opposed forced anal exams, and the Committee Against Torture has called on several countries, including Cameroon, Egypt, and Tunisia, to stop conducting them.

In October 2017, the World Medical Association adopted a resolution condemning forced anal exams and calling on doctors to stop conducting them. National medical associations in Lebanon, Tunisia, and most recently in Kenya have also criticized the exams. Tunisia, during its Universal Periodic Review at the UN Human Rights Council in September, accepted a recommendation to prohibit the use of forced anal exams, although it has not yet taken steps to do so.

Other countries that have conducted forced anal exams on people accused of homosexuality in the last eight years include Tanzania, Turkmenistan, and Zambia.

“With this ruling, the judges are saying that we all deserve to be treated with dignity and afforded our basic rights, as enshrined in the Kenyan Constitution,” Njeri Gateru, head of Legal Affairs at NGLHRC, said in a statement.

Activists hope that the ruling will lend support to other civil rights cases pending in Kenya’s courts. In 2016, NGLHRC, along with the Gay and Lesbian Coalition of Kenya (GALCK) and the Nyanza Rift Valley & Western Kenya Network (NYARWEK), filed a constitutional challenge to sections 162(a) and (c) and 165 of Kenya’s penal code, which criminalize consensual same-sex relations. The groups contend that these colonial era laws prohibiting “carnal knowledge against the order of nature” violate the rights of LGBT Kenyans and others to privacy, equality and non-discrimination. A ruling is expected in the coming months.

“This landmark ruling places Kenya’s courts at the vanguard in affirming that the government cannot deny LGBT people their basic rights,” Ghoshal said. “No one should be subjected to forced anal exams, and no one should be deprived of their rights because of who they are or whom they love.”