The murder of a gay activist in Kisumu, Kenya's third largest city in Western Kenya, underlines the climate of threat and hostility in which local LGBT exist, activists say.
Kisumu gay activist Adams Lenox, of Kisumu Initiative for Positive Empowerment (KIPE), a local NGO which is also involved in the fight against HIV and AIDS within the regions of Western Kenya, told The Truth Weekly of the murder 20 August of activist Charles Omondi Racho, whose body was found dumped in a thicket by the roadside.
He said Racho was attacked and killed by a group of "rowdy youth" who earlier identified him at a local night club and "threatened to discipline him for being a gay".
“Imagine this guy was attacked in the presence of his cousin who was also threatened by the same gang and all his belongings taken and when we reported the matter to the police, no action was taken only for the police to laugh at us and accuse us of going against the local culture,” Lenox said.
The killing followed a series of threats and hostilities directed at members of the gay community in Kisumu, Lenox told the newspaper. In July an LGBT workshop in Kisumu was attacked and the meeting venue set on fire "by rowdy youths who accused them of going against the local culture". Behind The Mask reported in July on the growth of the organised LGBT community in the Kisumu area.
Racho's cousin, who was with him in the night club and also threatened and says he is now in hiding, said that Racho had been attacked twice before. In one attack at the Kisumu bus station his clothes were torn and other personal effects including documents lost as "angry youths descended on him with blows and kicks just because he was a known gay".
The newspaper says that Racho reported the attacks to the local police "but the police turned deaf ears to his complaints, claiming that homosexuality is prohibited in Kenya and has no place in the society".
In May The Kenya Human Rights Commission launched a report 'The Outlawed amongst Us — a study of the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Community in Kenya' which accused the police of sexually assaulting homosexuals while in their custody..
The report has excerpts from respondents who claimed attempts to report harassment by police were in vain “due to the reluctance of the police to investigate and prosecute their own”.
Tom Kagwe, the commission’s senior programme officer said most state officials, especially the police, harass gay persons in remand by keeping them beyond the constitutional time limits.
The report indicated that the police, especially in Coast Province, “plant offences” such as being drunk and disorderly or prostitution on the group.
“Some police officers even demand sexual favours in exchange for release from custody,” Mr Kagwe said.
Writing in Gay Kenya, activist Eric Gitani says that Kenyan LGBT activists have a key aim of decriminalisation of homosexuality, using rights enshrined in the 2010 Constitution and taking the precedent of how homosexuality was decriminalised in India.
"There is consensus among jurists that the penal laws are unconstitutional by virtue of being at variance with a number of human rights including, equality, privacy, health and dignity. The existence of the laws serves to normalize and legitimize homophobia," he writes.
However he warns that "a direct constitutional challenge that only relies on legal arguments is un-strategic, likely to fail, and runs the risk of damaging the future development of LGBTI works in Kenya and the continent at large by way of judicial precedence."
Nevertheless, Gitani argues that other legal challenges can be made, including 'Failure to protect (attacks by third parties)':
"This relates to cases where LGBTI persons or those perceived to be, have been attacked and the state has failed to investigate, prosecute and punish the perpetrators. Such cases would make a link between the attacks by third parties and state-sponsored homophobia in order to hold the state accountable. There have been instances where LGBTI persons have been subjected to violence and there has not been prosecution of those involved."
As well as 'Failure to respect (actions by state agents)':
"This takes focus on the violations perpetrated by state agents, the police in particular, who target and harass LGBTI persons. These will include house raids, illegal body searches or patting in the street, instances where people are picked up from the street on a charge of public indecency, or carnal knowledge against the order of nature but in reality they are never charged or are later charged with trumped up charges. The purpose of these arrests is to illicit bribes from the community."
"The idea here would be to sue the state for malicious arrests and harassments and allege the violation of rights including, equal protection of the law, privacy and dignity among others. We must build a case on the profiling and subsequent harassment of LGBTI person by police, the Trans persons and effeminate gay men being the most targeted here."
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