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Kenyan Court Strikes Down Forced Anal Testing in Homosexuality Cases

FILE - Kenyan gays, lesbians and others supporting their cause wear masks to preserve their anonymity as they stage a rare protest against Uganda's increasingly tough stance against homosexuality, Feb. 10, 2014.

A Kenyan appeals court has struck down the use of forced anal testing in homosexuality cases. Rights activists are hailing the verdict as a key victory that could have a ripple effect in the region.

The court of appeals in the coastal city of Mombasa ruled Thursday that the forced anal testing of suspected gay men is unlawful. The judges deemed the practice a violation of human rights.

Njeri Gateru, the acting director of Kenya's National Gay and Lesbian Human Rights Commission, which filed the case, describes her reaction.

“Excited, happy, affirmed mostly," she said. "We just honestly think that it’s about time that the dignity of LGBT people is preserved as it should be, as enshrined in the constitution.”

Homosexuality is illegal in Kenya, punishable by up to 14 years in prison. Authorities have routinely subjected men arrested under the law to anal examinations.

Thursday's verdict stems from a 2015 case. In 2015, Mombasa police obtained a court order to force two men to undergo anal exams and HIV testing at a local hospital. The two men had been arrested and charged with unnatural sex.

The National Gay and Lesbian Human Rights Commission challenged the court's decision on the grounds that anal exams are cruel, inhumane and degrading. The commission also argued that the exams were a breach of medical ethics, both in Kenya and internationally.

Neela Ghoshal is Senior Researcher in the LGBT Rights program at Human Rights Watch. She called Thursday’s ruling “historic.”

“The appeal has made it very clear that biases against someone’s sexual orientation cannot be a reason to subject them to this really quite medieval form of torture, and I think that there is a good chance that this ruling will serve as precedent in other countries as well," she said.

She says activists in Uganda plan to file a constitutional challenge against the use of anal exams, and predicts that activists will do the same in other African countries like where the exams have not been banned.

Homosexuality remains far from accepted in Kenya.

Dr. Ezekiel Mutua serves as the chief executive officer of the Kenya Film Classification Board. He’s more popularly known as the country’s morality cop.

“Gay people are human beings, and therefore to the extent that someone could be subjected to anal tests, I think that’s very wrong and that was a violation of their rights. I would actually support them in that regard, but that does not mean that homosexuality is right," he said.

In February, Kenya’s High Court began hearing of arguments in a potentially landmark case that seeks to repeal Section 162 of the colonial-era penal code. The plaintiffs argue that the state cannot criminalize consensual same-sex relations between adults. It is the first time that a Kenyan court has considered such an argument.

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