A group seeking to quash some provisions of the penal code that make it illegal for consensual same sex will call expert witnesses to bolster their case, a trial court was told.

Appearing before a bench of three judges, Senior Counsel Paul Muite said that they will be calling a psychiatrist to explain sexual orientation and why the state should not regulate matters of intimacy.

SC Muite said the experts will table reports to demonstrate biological and even social conditions to give a peep into one’s sexual orientation.

In the case, Eric Gitari, a self confessed homosexual, wants decriminalization of section 162 and 165 of the penal code that outlaws sodomy.

Order of nature

He said the sections are discriminatory and contravenes various provisions of the constitution such as right to equality; freedom from discrimination, human dignity, freedom and security of the person and right to privacy.

Section 162 reads, “Any person who – (a) has carnal knowledge of any person against the order of nature; or

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.

Section 165 reads that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Same-sex marriage

Gitari argued that the petition has nothing to do with same-sex marriage, does not seek the legislation of same-sex marriage and will not if successful, have the effect of mandating or requiring Kenya to recognize same-sex marriage.

Justices Roselyn Aburili, Chacha Mwita and John Mativo at the same time consolidated the case with another petition filed by John Mathenge and four others, who are seeking the same prayers. Mathenge is represented by lawyer Willis Otieno.

“The petition only concerns the criminalisation and severe punishment under the criminal law of a whole section of Kenyan society on account of the fundamental and innate characteristic of the sexual orientation,” SC Muite said.

Gitari, who is the director National Gay and Lesbian Rights Commission in Kenya, an NGO which was established in April 2012, argues that the law criminalizing relevant conduct such as unnatural and grossly indecent, are degrading.

The case will be heard on February 22 2018.