FILE - In this Monday, Feb. 10, 2014 file photo, Kenyan gays and lesbians and others supporting their cause wear masks to preserve their anonymity as they stage a rare protest, against Uganda's tough stance against homosexuality and in solidarity with their counterparts there, outside the Uganda High Commission in Nairobi, Kenya. Kenyan High Court judges on Monday, April 27, 2015 ordered a government agency to register a human rights group representing the country's gay people, a move which had previously been opposed on religious and moral grounds. (AP Photo/Ben Curtis, File)

Yesterday’s post in Conjugality by Matthew Otieno scolding President Barack Obama for chiding Kenyans about their views on homosexuality has created a lot of controversy on MercatorNet. Several readers have noted that Kenya has very severe penalties for gay sex in its Penal Code

What does the 2009 Code actually say?

Article 162 deals with homosexual acts. “Any person who –  (a) has carnal knowledge of any person against the order of  nature; or  (b) has carnal knowledge of an animal” is “liable to imprisonment for 14 years”.  Homosexual rape is punishable with 21 years’ imprisonment.

Article 163 deals with attempted unnatural offences. Such crimes are punishable with 7 years’ imprisonment. Article 165 deals with acts of “gross indecency” by males, whatever that means. Perhaps a stolen kiss. These are punishable by 5 years’ imprisonment.

Do these sound harsh? Absolutely.

But if you take a closer look, the picture changes. The first thing that jumps out is that Penal Codes treats the fair sex much more gently. The offence of “gross indecency”, for instance, can only be committed by males. Lesbians would get off scot-free.

But this is just a quibble. The main impression is that Kenyans like tough-sounding laws.

Murder is punishable with death; manslaughter with life imprisonment. In most enlightened Western countries (apart from the one of which Mr Obama is president), there is no death penalty, and voluntary manslaughter in, for instance, Massachusetts, is punishable by 3 to 10 years.

And while euthanasia and assisted suicide are actually legal in some countries, both are punishable with life imprisonment in Kenya. Killing unborn children is a government-subsidized industry in the United States, but in Kenya they throw away the key.  

So, while gays, and to a lesser extent, lesbians do have something to complain about with respect to Kenya’s tough approach to homosexuality, its harshness is more or less proportionate to penalties for other crimes and it reflects community attitudes. 

Besides, the key word is “liable”. The real question is how often the law is enforced. Prostitution is harshly punished and yet there are legions of prostitutes in Kenya. Rape is punishable with 5 years in prison and yet unpunished rape is a huge problem. How many gays are actually prosecuted and punished? That is the real issue. 

So perhaps Mathew Otieno was right to tell Kenya’s favourite son to take a running jump.

Michael Cook is editor of MercatorNet.  

Michael Cook

Michael Cook is the editor of MercatorNet.