CEU Electronic Theses and Dissertations, 2020
| Author | Wairimu, Stephanie |
|---|---|
| Title | Decriminalisation of consensual same sex conduct: A missed opportunity in Kenya, Progress in Botswana |
| Summary | Lesbian, gay, bisexual, transgender and queer (LGBTQ) people in Kenya face various challenges including rights violations, discrimination and violence which this thesis argues are in part due to the existence of Penal Code provisions that criminalise consensual same sex conduct between adults. This thesis seeks to answer the question, how would decriminalisation of consensual same sex conduct between adults contribute to an important step towards the advancement of the rights of the LGBTQ community in Kenya. This thesis highlights the existing international human rights framework and argues that Kenya is failing in its regional and international law obligations by allowing the existence of criminalisation provisions in the Penal Code. Kenya and Botswana share the same colonial history and thus it is unsurprising that their Penal Codes contain(ed) similarly worded provisions criminalising consensual same sex conduct between adults. This thesis explores the advocacy towards decriminalisation in both countries zeroing in on comparing the strategic litigation cases filed by civil society and members of the LGBTQ community in their respective High Courts as part of a wider advocacy strategy and the courts’ reasoning in judgments released weeks apart in 2019. It goes on to argue that the advocacy win in Botswana and loss in Kenya were results of different legal and political factors in both countries, and in order to substantiate this argument, the thesis briefly analyses and compares the prevailing legal, social and political climates. In the conclusion, this thesis reiterates Kenya’s international law obligations and the importance of decriminalisation as a first step towards enhancing protection of the rights of LGBTQ people in Kenya and easing the work of activists and organisations seeking to promote the protection of LGBTQ rights. |
| Supervisor | Polgari, Eszter |
| Department | Legal Studies MA |
| Full text | https://www.etd.ceu.edu/2020/wairimu_stephanie.pdf |
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