The petition is addressed to Keriako Tobiko, Kenyan director of public prosecution.
The NGLHRC explained the reason for the petition:
Stop forced anal examination and HIV testing in Kenya
On the 15th day of February 2015, two men, while seated at a public Bar known as Manyatta within Diani in Kwale County, 8 police officers including the Officer Commanding Diani Police Station approached them while in the company of a female adult friend known as Wangare. The police officers arrested the two after having explained to them that they were investigating issues related to gay liaisons and in particular production of pornographic movies and that they had duly been informed that they were suspected gay male adults.
The police officers escorted the two men to the police station and subjected them to interrogation and detained then for a period of 4 days. It was while under police custody that a police officer known as Salim Yunis first attempted to forcefully have the two men examined at the Diani Dispensary to prove that they were practicing unnatural sex as envisaged under Section 162 of the penal code, to which they refused to give their consent.
The police officer thereafter arraigned the two men in court at Kwale Law Courts, charging them with the offences of practicing an unnatural sex contrary to Section162(a) as read with Section 162(c) of the penal code and indecent act with an adult contrary to Section II (a) of the Sexual Offences Act and trafficking in obscene materials contrary to Section 181 (1)(a) of the penal code. (During the four days’ detention period, the police had raided the house of one of the two men and found Queer’s Folk DVD series; this is evidence for the obscene material charge.)
The police officer thereafter made an application orally before the presiding magistrate Hon. Njagi to have the two men subjected to a medical examination to prove that they had anal sex with each other contrary to Section 162 of the penal code.
The Hon. Mrs Njagi thus ordered that a medical examination be conducted on the two men who were thereafter referred to Makadara General Hospital while under police custody and subjected to an anal exam, HIV testing and other blood-related tests.
While at the hospital, the two men were forced to sign consent forms in adherence to the hospital’s policy for the exams to be undertaken, whereas the same was a direct order of the court. They were forced to strip naked, lay facing up, lift their legs in the air and cough as medical personnel inserted fingers and metallic objects up their rectum.
The two men were subjected to inhumane, torturous and degrading treatment while being taken through the procedure of anal check under the watch of hospital personnel and the police. They were later charged for committing unnatural offences and detained for months awaiting bail terms worth Kenya shillings 500,000 per accused person (US$ 5,000)
The actions and conditions that the two went through constitute cruel, inhumane and degrading [treatment], which is forbidden under article 25 of the Constitution of Kenya. They also amount to torture under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which has been ratified by Kenya and thus forms part of Kenyan law in terms of Article 2(5) of the Constitution of the Republic of Kenya, 2010. Further, forced anal testing and HIV testing is a breach of medical ethics both in Kenya and internationally and has no probative evidential value in criminal prosecutions.
The High Court of Kenya sitting in Mombasa decided in June 2016 that there was no other way to prove that the two had homosexual sex, which is a crime in Kenya. (http://kenyalaw.org/caselaw/cases/view/123715/), that the forced anal exam and HIV testing were legitimate means of collecting samples from suspects. It also ruled that the mouth and anus are not sexual organs until ‘modern science’ proves otherwise. This means that consenting adult heterosexuals and bisexuals engaging in oral sex or anal sex in private can also be subjected to anal testing and prosecutions for engaging in unnatural sex. It is unconscionable and against the rule of law that the prosecutions go on regardless of whether it was private and consensual between adults.
While we, the National Gay and Lesbian Human Rights Commission, Kenya, have appealed against this awful judgement to the Court of Appeal, prosecution of the two men who were subjected to anal testing and HIV testing continues, with a hearing mention on January 12, 2017 and further public prosecutions to follow in 2017.
The Constitution of Kenya requires in Article 157 (11) that in exercising his powers, the Director of Public Prosecutions (DPP) shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
WE THEREFORE appeal to the DPP to drop all criminal charges in this anal testing matter as we proceed with querying the constitutionality of this unjust act of the state at the Court of Appeal. We also ask that the office of the DPP ceases and desists from using forced anal testing and HIV testing as evidence gathering means in prosecuting unnatural offences because this methods violate fundamental rights.
— National Gay and Lesbian Human Rights Commission, Kenya
In cooperation with Erasing 76 Crimes