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Kenyan Supreme Court dismisses challenge to ruling that allowed LGBTQ group to register

Opposition MP Peter Kaluma was not part of original case

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Kenyan flag (Photo by rarrarorro/Bigstock)

Kenyaā€™s highest court on Tuesday dismissed a challenge to its February ruling that allowed the National Gay and Lesbian Human Rights Commission toĀ registerĀ as a non-governmental organization.Ā 

The Supreme Court established the petitioner, opposition MP Peter Kaluma, is not an aggrieved party to its ruling since he was never involved in the case under rules that govern case hearings.Ā Ā 

Kenyaā€™s NGO Coordinating Board refused to register NGLHRC for more than a decade on grounds that it promotes same sex behavior, which the country’s penal code criminalizes. 

The February ruling sparked heated criticism from Kenyans, clerics and politicians against the Supreme Court judges and demanded it be reversed. The decision prompted Kaluma, who is a fierce critic of homosexuality, to challenge it in March and demand the term “sex” be redefined to exclude same sex practices.Ā Ā 

The MP has sponsored a stiffer anti-homosexuality bill that awaits introduction in the House of Representatives.

The Parliamentary Budget Office has already considered the bill’s financial costs to the government. The measure is currently pending before the Social Protection Committee, which will consider its implications for Kenyans.Ā Ā 

The Social Protection Committee was to consider the bill within a month as House rules requires, but the period is now three months. Kaluma has confirmed to the Washington Blade that he wrote to National Assembly Speaker Moses Wetangula two weeks ago to complain about the committee’s delay.

While challenging the Supreme Courtā€™s ruling, Kaluma in his petition argued it misinterpreted the term “sex” under Article 27 (4) of the Kenyan Constitution by ā€œreferring also to sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwiseā€ not to be discriminated based on sexual identity.  

Kaluma claimed the court’s ruling ā€œusurped the sovereign power of the peopleā€ and it was ā€œobtained through fraud, deceit and misrepresentation of factsā€ by the NGLHRC defendants, which are some of the grounds the court can consider when it reviews its decision. The court, however, dismissed his petition because it failed to substantiate the claims and he was not a party to the case when it was heard and when the judges issued their ruling.

ā€œThe court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties,ā€ court noted. 

The ruling cited Article 163 of the constitution and subsequent procedural laws that allows the court to only consider a challenge of its ruling from an aggrieved party to the case.

Eric Gitari, who is NGLHRC’s former executive director, also filed a motion in opposition to Kaluma’s petition on grounds that ā€œit is frivolous and without meritā€ because he wasn’t a litigant in the case. Gitari had also warned the court against entertaining the petition for being ā€œprocedurally irregularā€ and that it would undermine the court’s authority and the finality of its proceedings.   

Anti-LGBTQ crackdown continues, MPs challenge PEPFAR funding

Although the courtā€™s latest verdict affirming its initial decision for NGLHRC to be registered as an organization is a reprieve for Kenya’s LGBTQ community, all eyes are now on Attorney General Justin Muturi. He has vowed toĀ challengeĀ the NGLHRC ruling on behalf of the government.Ā 

Muturi’s anticipated move to have the judges review the ruling is part of efforts to crackdown on consensual same-sex sexual relationships the constitution does not recognize and Section 162 of the penal code outlaws.

A group of 10 Kenyan MPs and religious leaders in June in a letter to the U.S. Congress said President’s Emergency Plan for AIDS Relief funding to Kenya no longer serves its original purpose of fighting HIV/AIDS because it supports homosexuality and abortion. The letter ā€” titled PEPFAR and African Values ā€” went to several members of the U.S. House of Representatives and the U.S. Senate.

ā€œWe wrote that letter to the U.S. Congress not to stop PEPFAR funding to Kenya, but to demand the initiative to revert to its original mission without conditioning it to also supporting LGBTQ as human rights,” reads the letter that Kaluma signed.

Kaluma called on Congress to pressure the Biden-Harris administration to reverse policies and executive orders that condition U.S. funding to developing countries with recognition of LGBTQ and intersex people against what the MP said is the will and cultural beliefs of beneficiary nations.

Kenya expects to receive more than $341 million in PEPFAR funding for the 2023-24 financial year. The current funding period ends on Sept. 30.Ā 

Republicans last month seized upon the letter addressed to Congress and demanded the suspension of PEPFAR funding to Kenya for the upcoming fiscal year. Some Republican lawmakers have also sought to stop the U.S. Agency for International Development from funding LGBTQ and intersex rights efforts around the world. 

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Africa

For queer Nigerians, being on gay dating apps is still a risk

Homophobes target users for violence

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(Bigstock photo)

Gay hookup apps like Grindr, and dating apps like Tinder and Bumble have managed to proliferate queer communities in countries like Nigeria. 

Those who seek one night stands find what they want while those looking for love equally find what they seek. These platforms have managed to position themselves as safe spaces for queer people in anti-gay Nigeria. In  recent times, however, it is proving to be unsafe, as homophobic people are quickly learning about the apps, and opening accounts that either seek to outrightly threaten queer people, or pretend to be queer, have long chats with gay people, invite them over, and inflict violence on them.

Take the case of Biodun, a queer Nigerian man who joined Grindr to meet up with guys like him. 

After Biodun had built a connection and agreed to meet with someone whose display name was ā€œMamba,ā€ they decided to meet up only for him to be met with violence. Apparently, Mamba ran a catfish account. 

ā€œIā€™ll never forget that day,ā€ Biodun, who asked the Washington Blade not to use his last name because of safety concerns, said. ā€œI still think about it, and sometimes blame myself for being very careless, even though Grindr was supposed to be our safe space.ā€Ā 

Biodunā€™s experience isnā€™t peculiar to him. 

In Nigeria, draconian laws that criminalize same-sex relationships exist, making queer people turn to the digital realm to explore their identities and seek connections beyond the confines of societal oppression that comes with the physical environment. Gay dating apps such as Grindr, therefore, have emerged as virtual sanctuaries, offering spaces for queer Nigerians to forge friendships, find solidarity, and pursue romantic or sexual relationships. Spaces like this, however, have morphed into a landscape fraught with danger, as homophobic people have weaponized these platforms to perpetuate hate and violence. 

ā€œSometimes, I often wonder how they learned about these platforms,ā€ Daniel, which is not his real name, told the Blade. ā€œYou would think that it is just us in the platforms, until you find out that the accounts are rooted in homophobia.ā€Ā 

One time, someoneā€™s bio read, ā€œI’m only here to deal with the gay people. I know all of you, and I will find and kill you. We no want una for here (translates to we do not want you here, in English.)ā€ It was a stark reminder that these spaces are no longer LGBTQ-friendly for Nigerians. In 2014, there was the passage of the Same-Sex Marriage Prohibition Act by former President Goodluck Jonathan, which not only criminalized same-sex unions, but also imposed severe penalties on anyone involved in LGBTQ advocacy or support. 

This law catalyzed a surge in discrimination and violence against queer Nigerians; emboldening regular civilians, religious extremists, and even law enforcement agencies to target individuals perceived as deviating from traditional gender and sexual norms. Again, amid this hostile environment, gay dating apps emerged as lifelines for many queer Nigerians, offering avenues for discreet communication, community building, and the pursuit of intimate relationships.

The very anonymity and freedom these apps provided, however, became double-edged swords. 

The advent of screenshot and screen-recording capabilities on these apps, for example, reduced the risks of exposure, strengthening the safety and privacy of users. However, this also comes with its own lapses, as queer people using Grindr have often relied on screenshots and screen recordings to confirm the identities of potentials with their friends, before accepting to meet. 

ā€œBefore the removal of the screenshot option, I usually shared photos of others with my trusted friends,ā€ Biodun shared. ā€œBut since that was taken off, there was no way for me to do that.ā€ 

Although, according to Grindrā€™s terms and conditions, the removal came with privacy concerns, as it was to facilitate a safe dating experience.

This erosion of digital safe spaces is depriving queer Nigerians of vital avenues for self-expression and affirmation,and is exacerbating the psychological toll of living in a society that continues to systematically demonize their identities. Moreover, the normalization of homophobic rhetoric and violence in both physical and digital realms has perpetuated a cycle of fear and oppression, and is reinforcing this notion that LGBTQ individuals are inherently unworthy of dignity and respect. Despite these challenges, though, the resilience of queer Nigerians continue to persist, as they defy societal norms and assert their right to love and be loved.

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Africa

Upcoming Ugandan Census will not count intersex people

Advocacy group report documents rampant discrimination, marginalization

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(Image by rarrarorro/Bigstock)

Uganda’s national Census next month will not count intersex people.

The revelation about the exclusion of intersex Ugandans in the 9-day Census exercise that will begin on May 10 has been confirmed to the Washington Blade by the head of Uganda’s Bureau of Statistics.

UBOS Executive Director Chris Mukiza in response to the Blade’s questions on the issue said the agency has “no business with intersex.”

Their counting could have made Uganda the second African country and the third globally after Australia and Kenya to collect an intersex personā€™s data in a Census.Ā 

Kenya’s 2019 Census determined there were more than 1,500 intersex people in the country.

Uganda had a population of 34.8 million, according to the country’s last Census that took place in 2014.

Intersex people in Uganda are among marginalized groups, subject to stigma and discrimination. The government has yet to recognize them as the third sex and consider them among other minority groups, such as people with disabilities, who enjoy special treatment.

Intersex people cannot be exclusively categorized as male or female for having a biological congenital condition with unique sex characteristics due to inherent and mixed anatomical, hormonal, gonadal, or chromosomal patterns that could be apparent before, at birth, in childhood, puberty, or adulthood.

Mukizaā€™s position of excluding intersex people in the Census, however, comes amid the prime minister’s office’s demands for inclusivity and equality for all the population. (The Constitutional Court on April 3Ā refusedĀ to ā€œnullify the Anti-Homosexuality Act in its totality.ā€)

ā€œWe recognize that much work remains to be done particularly in addressing the needs of the marginalized and vulnerable communities, promoting inclusive economic growth, and combating climate change,ā€ said Dunstan Balaba, the permanent secretary in the prime ministerā€™s office.

Balaba spoke on April 18 during the National Population and Housing Census prayer breakfast meeting the UBOS convened. Religious leaders and other stakeholders attended it.

President Yoweri Museveni has noted that data from the countryā€™s sixth national Census will be crucial towards achieving the nation’s Vision 2040 and help the government, non-governmental organizations, and donors in providing services to the diverse population.

ā€œIt will also provide the basis for planning the provision of social services such as education, health, and transport, among others at the national and local level,ā€ Museveni said as he urged citizens to fully support the Census and provide accurate information.

Uganda has an intersex rights organization, “Support Initiative for People with Atypical Sex Development (SIPD),” which activist Julius Kaggwa founded in 2008 with the support of groups that advocate for children, women, and other marginalized populations.

Some of SIPDā€™s work as a non-profit, grassroots organization includes community outreach and engagement, sharing reliable information with the society for the protection of intersex peopleā€™s rights, and championing the need for organized medical and psychological support.

The organization, through its numerous reports, has decried human rights violations against intersex people that include surgery without consent, discrimination in homes, schools and medical centers, parents abandoning intersex children, and stigma due to lack of legal protection by the government.

Uganda’s Registration of Births and Deaths Act allows a parent or guardian of a child under the age of 21 to change the name or sex at the local registration office. The SIPD, however, maintains this law is discriminatory to intersex people over 21 who want to change their sex characteristics, and want parliament to repeal it. 

The intersex rights organization wants the Health Ministry to establish a central registry to register intersex children after they’re born in order to receive support in terms of healthcare, social and legal by the government and other stakeholders as they grow up. 

SIPD particularly wants the government to enact a policy that would allow a gender-neutral marker on birth certificates for intersex children to ease any change of sex in the future. The organization also wants the government, through the Education Ministry, to adopt a curriculum that also considers intersex issues in schools and creates a friendly environment for intersex children to learn and graduate like their non-intersex peers.

These demands follow SIPDā€™s findings that disclosed many intersex children were dropping out of school because of the stigma and discrimination they suffered. The organization has further called on the public-funded Uganda Human Rights Commission to live up to its constitutional mandates of defending human rights by leading the promotion and protection of the rights of intersex people across the country.

SIPD has also challenged religious leaders, who play a key role in Ugandan society and are influential at the local and national level, to promote acceptance of intersex people and to end discrimination against them.

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Africa

Ugandan activists appeal ruling that upheld Anti-Homosexuality Act

Country’s Constitutional Court refused to ‘nullify’ law

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(Image by rarrarorro/Bigstock)

Twenty-two LGBTQ activists in Uganda have appealed this month’s ruling that upheld the country’s Anti-Homosexuality Act.

The Constitutional Court on April 3 refused to “nullify the Anti-Homosexuality Act in its totality.”

President Yoweri Museveni last May signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

Media reports indicate Sexual Minorities Uganda Executive Director Frank Mugisha and Jacqueline Kasha Nabagesara are among the activists who filed the appeal.

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