Kenya Judge Upholds Use of Anal Probes to Define Sexuality for Gay Suspects

Jun 20, 2016 03:48 PM EDT

A Kenyan court upheld the use of anal examinations to determine sexual orientation of men suspected of homosexual activity, which is a criminal offense in Kenya. Two men, after they were subjected to this type of exam as well as HIV and hepatitis B tests, sought a court ruling Thursday to halt future such procedures on men accused of being gay.

Mombasa High Court Judge Mathew Emukule said there was no violation of the law, according to Associated Press.

"I find no violation of human dignity, right to privacy and right to freedom of the petitioners," he said.

Instead, he said there was sufficient justification under Kenyan law to allow the intrusion into the human body for the purpose of gathering evidence to prove a sexually related crime. 

The men involved argued the associated procedures equal torture and degrading treatment. The two were arrested in a bar near Ukunda, along Kenya's Indian Ocean coast in February 2015 on suspicion of engaging in gay sex.  

The two men still face the charges, and if convicted, could face 14 years in jail, reports Associated Press.

The judge said the petitioners should have used lawyers to seek injunction orders to avoid undergoing the tests.

"It's so painful when we are trying to encourage the gay community to go to court to affirm their rights; the courts are instead affirming violation of their rights," said Eric Gitari, the executive director of the Kenyan National Gay and Lesbian Human Rights Commission.

The commission filed the petition on behalf of the two men.

Gitari told the Associated Press he sat in court holding his chin in disbelief. "This is heart-wrenching in so many ways," he said, according to Voice of America.

"It sets a very dangerous precedent which jeopardizes the security of so many LGBTI persons, especially gay men," warned Gitari. "It makes them now very vulnerable to blackmail and extortion with the threat that they can actually be subjected to anal testing and that result of anal testing be used in court to jail them for 14 years. So it's a life-changing judgment that has been delivered today."

One of the questions being debated, Gitari indicates, is the current court judgment means that someone can be arrested on a rumor that they are gay and subjected to these tests. "Do we want to use the nation's scarce resources on this?" he posed.

A memorandum of appeal was filed immediately after Thursday's ruling by the National Gay and Lesbian Human Rights Commission on behalf of the two petitioners. The new petition named the magistrate who ordered the exams, the hospital, the police, the director of public prosecution and the health ministry.

A hearing now will be slated by the Court of Appeal.