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A Court in Kenya Will Decide If Anal Exams to Determine Sexuality Are Unconstitutional

The case opened in a Mombasa court on Wednesday over an incident where two men were forced to undergo extensive physical evaluations at a local hospital to determine whether they had engaged in homosexual activity.
Foto di Antony Njuguna/Reuters

Men who were forced to undergo anal examinations in order to prove whether or not they engaged in gay sex will have their case heard in a Kenyan court this week, as they fight to make these kinds of tests unconstitutional in the East African country.

The anal exams occurred in February 2015 near Mombasa, where local hospital staff performed the tests on two men at the request of authorities. The legal filings were submitted last fall, and the case opened in a Mombasa court on Wednesday morning.


In addition to asking the judge to find the anal exams unconstitutional, the plaintiffs also request that the acts be deemed as "amounts to degrading treatment" and "a violation of the human and constitutional rights."

The Nairobi-based National Gay and Lesbian Human Rights Commission (NGLHC) has made the case a priority, filing the initial lawsuit against a judge and police station in the small coastal town of Msambweni, where the pair was arrested. NGLHC has claimed officials ordered the testing during an ongoing trial against the defendants who face charges under the country's anti-gay laws including "unnatural offenses" and trafficking "obscene material." The suit was filed with the aim of stalling the legal proceedings against the men.

"We're asking the courts to declare the entire case annulled and give compensation to the petitioners who [were] subjected to degrading treatment by the state," Gitari said in November. "We want that precedent stopped… They're treating homosexuality like a disease right now."

Gitari posted a photo from the courtroom on Facebook Wednesday morning.

The controversy first escalated in February 2015 after pornographic images circulated on social media believed to be featuring men from the coastal community of Msambweni, south of Mombasa. This sparked a public backlash against gay men and transgender women. Following the incident, the community also began to put pressure on authorities to prosecute and crack down on LGBT individuals.

During that tense period, there were also physical attacks on gay individuals, an atmosphere that pushed many members of the community to flee in fear, according to a Human Rights Watch (HRW) report on LGBT attacks on Kenya's coast published in September.

Then, on the morning of February 18, police arrested the two young men in question while they were at a restaurant in Msambweni. Following the arrest, police had the magistrate approve a court order for medical testing. The men were then transported to the government-run Coast General Hospital in Mombasa, where Gitari says doctors took the individuals' blood while they were in police custody, testing for HIV and hepatitis B. The healthcare workers then reportedly made the men, whose identities have been withheld, raise their legs in the air while they performed an anal exam. The medical procedures and testing were inconclusive, but the men were still slapped with charges stemming from same-sex relations.

Homosexuality is illegal in Kenya, yet these types of charges rarely make their way to court. To date, not a single case has been fully prosecuted. Instead, police typically use the anti-gay laws to harass or extort citizens. According to the HRW report released last year, this case of anal testing in Kwale is the first reported instance in Kenya. The organization noted that it is a common practice in countries like Egypt, Uganda, and Cameroon.

Follow Kayla Ruble on Twitter: @RubleKB