Court of Appeal recommends review of age of sexual consent under the Sexual Offences Act.

original publication by kenyalaw.org

Reported by Faith Wanjiku

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, MUSINGA & KIAGE, JJ.A)

CRIMINAL APPEAL NO. 102 OF 2016

BETWEEN

ELIUD WAWERU WAMBUI……………………………………..APPELLANT

AND

REPUBLIC……………………………………………………………..RESPONDENT

(Appeal from the Judgment of the High Court of Kenya at Nairobi (Achode, J.)

dated 25th June, 2014 in HC. CR.A. No. 302 of 2011)

************************

JUDGMENT OF THE COURT

This appeal epitomizes for the umpteenth time the unfair consequences that are inherent in an critical enforcement of the Sexual Offences Act, No. 3 of 2006 (the Act) and the unquestioning imposition of some of its penal provisions which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation. The case poses one more time whether it is proper for courts to enforce with mindless zeal that which offends all notions of rationality and proportionality.

The appellant, Eliud Waweru Wambui, in this second appeal protests, essentially, that he is like Shakespeare’s King Lear, a man more sinned against than sinning. He was arrested nearly a decade ago, and arraigned before the Chief Magistrate’s Court at Thika on 1st December, 2010 on a charge of defilement, contrary to section 8(1)(4) of the Act. The particulars of the charge were that;

“On the month of May 2009 at Makuyu Township in Murang?a county within the Republic of Kenya [he] committed an act that caused penetration to a child namely ANK a child aged 17 years and 5 months.”

He faced an alternative charge of indecent act contrary to section 11(1) of the Act particularized that;

“On the diverse dates from January 2009 and 16th November 2009 at Makuyu township in Murang’a county within Republic of Kenya [he] committed an indecent act with a child namely ANK a child aged 17 years by touching her genital organs.”

The appellant denied the charges leading to a trial in which the prosecution called some five witnesses, at the end of whose testimony the trial magistrate found the appellant had a case to answer and placed him on his defence. He made an unsworn statement and called three brief witnesses.

In the ensuing judgment, the magistrate (L.M. Wachira, SRM) found the main charge proved against the appellant and convicted him. She then sentenced him to 15 years’ imprisonment.

Aggrieved by the conviction and sentence, the appellant preferred a first appeal against both to the High Court at Nairobi. The same was heard by Achode, J. who, by a judgment delivered on 25th June, 2014 found it to be devoid of merit and dismissed it, provoking the present appeal. In his self-crafted memorandum of appeal filed on 30th July, 2017, the appellant raised the following grounds of appeal on the basis of which he asked this Court to quash the conviction and set aside the sentence;

“1. That the 1st appellate court erred in law and fact by failing to notice that essential ingredients/elements of the offence as charged were not proved.

2. That the 1st appellate court erred in law by failing to consider/subject evidence to fresh scrutiny, re-evaluate the same and analyze as required of it. If it did, the 1st appellate court would have discovered that:

i. There were material errors in the prosecution evidence contained in exhibit 1 in that the date of issue of the birth certificate took place before the complainant was born.

ii. There was a likelihood that the charges against the appellant were borne out of malice and ill-will due to the fact that the appellant failed to pay the compensation required by PW2 (complainant’s father).

3. That the 1st appellate court erred in law by failing to notice that the appellant reasonably believed that the complainant had granted her consent and that she had capacity to grant the said consent and he believed she was full of age (sic) and capacity to contract a marriage.”

In written submissions filed on 30th July, 2018, the appellant combined the first two grounds of appeal. He first charged that the fact that the complainant was school-going did not of itself mean, much less prove, that she was under the age of 18 years. It was upon the prosecution to conclusively prove her age; and whereas she stated that she was born on 3rd October, 1991 and a birth certificate was produced, the same was a copy and not the original.

Moreover, the said document was false as it purported to have been issued on 1st October, 1991, which was two days before the date the complainant was allegedly born. He also asserted that as the local chief is said to have led some negotiations between the appellant and the complainant’s father which did not bear fruit because the appellant did not have the money demanded, it is not possible that the complainant was under age and the chief could not possibly have actively condoned an illegality. He thus submitted that PW2 must have decided “to fix” the appellant for failing to part with the sum of money requested.

On ground 3, the appellant contended that the complainant presented herself to him as a mature girl who was ripe for marriage and that she indeed testified that she and he were married. He went on to submit that;

“The mere fact that the complainant made the appellant her boyfriend had sex by consent several times and was willing to get married to the appellant shows that the complainant presented herself before the appellant as a mature girl ready to get married. After the parents of the complainant were made aware of the same, they approached the appellant for discussions of the way forward and if the appellant had agreed to pay the sum requested they would not have reported. It is clear therefore that the charges facing the appellant were driven by ill will and vendetta for non-payment of Kshs. 80,000.00.”

Basing his submissions on section 8(5) and (6) of the Act, the appellant posited that he had a reasonable basis for believing the complainant was over the age of 18 years at the time of the alleged offence, which was “a subjective test with an objective element” which related to his capacity to evaluate the consent and if so, reasonably believe it, which he did. He thus made the case that the evidence did create a reasonable doubt as to his guilt and was thus entitled to an acquittal in light of section 111 of the Evidence Act.

Ms. Maina, the learned Senior Principal Prosecution Counsel, opened her brief opposition to the appeal by the submission that “the offence was proved because the appellant impregnated the complainant and so it is obvious defilement occurred. The complainant was still school going and so incapable of giving consent.” She referred to section 43(4)(7) of the Act for that proposition. When we asked her the exact date when the offence is supposed to have been committed, she was unable to pinpoint any but referred to the complainant’s pregnancy whereupon we asked why it took so long for the appellant to be charged, in fact long after the child had been born, but she was unable to offer any explanation and there was none on record. She conceded that indeed there had been negotiations in which the complainant’s father PW2 sought some Kshs. 80,000 from the appellant, which he was unable to pay, before the charges against him were laid.

The learned Senior Principal Prosecuting Counsel concluded her submissions with the statement which captures the dilemma presented by cases such as the one before us;

“It is unfair for the appellant to be sentenced to 15 years imprisonment but that is the law and there is nothing we can do about it.”

The question we cannot ignore is whether a court of law can declare itself powerless in the face of obvious injustice as conceded by the State. We shall address that aspect, albeit briefly, towards the end of this judgment.

The appellant in his response reiterated that the birth certificate produced misled the trial court, and the first appellate court failed to properly re-evaluate the evidence and; find that he did reasonably believe the complainant to have been over 18 years old; take issue with the non-production of the original birth certificate, and find that PW2 as the complainant’s father would not have entered into negotiations and asked for Kshs. 80,000 before the local chief had the complaint been under age; find that had he paid the money the charges against him would not have been laid; and that it would not have been necessary for the complainant to be threatened and detained in custody by the police for 3 days to force her to record a statement and testify against him.

The appellant concluded by complaining that it was harsh and unfair for him to be jailed for 15 years, yet the complainant is his wife and he has responsibilities to take care of her and their child.

He therefore prayed that he be set at liberty.

As this is a second appeal, our jurisdiction is confined to a consideration of questions of law only by dint of section 361(a) of the Criminal Procedure Code, Cap 75 Laws of Kenya and we note that the memorandum of appeal as framed does raise questions of law. Our interaction with those grounds may of course involve, as in the complaint that the learned Judge did not re-evaluate the evidence, a reference to the facts as they emerge from the evidence that was tendered before the trial court. Such reference is not the same as hearing an appeal on a matter of fact which we are statutorily debarred to do.

The appellant’s complaint that the first appellate court did not subject the evidence to fresh scrutiny, analysis and re-evaluation is not an idle one. A first appeal always proceeds by way of re-hearing based on the evidence on record and an appellant is therefore entitled to expect that the first appellate court will go beyond a mere rehashing of what is on record or a repetition of the findings of the trial court.

It is required to and must be seen to be seen to have, consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant, the only limitation to its task being a remembrance that it is without the advantage, enjoyed by the trial court, of seeing and observing the witnesses as they testified, for which it must make due allowance.

See PANDYA vs. REPUBLIC [1957] EA 336, OKENO vs. REPUBLIC [1972] EA 32.

In this appeal, one of the appellant’s major complaints is that the age of the complainant was not proved to the required standard and that the document produced as her birth certificate could not be relied on to prove her age. There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt. That has been the consistent holding of this Court and we are content to adopt what the Court sitting at Mombasa stated in HADSON ALI MWACHONGO vs. REPUBLIC [2016] eKLR;

“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello vs. Republic Cr. App. No. 203 of 2009 (Kisumu). This Court stated as follows;

„In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).?”

In the present case, the appellant complains that the prosecution did not produce the original birth certificate. Rather, what was produced was a photostat copy of the alleged birth certificate, which copy was not certified as required by section 66 of the Evidence Act when permitting the production of secondary evidence if primary evidence, which is the document itself, is not produced for the inspection of the court and the contents of the document are sought to be proved by secondary evidence under section 64 of the Evidence Act. The appellant contends that the original document would have been the best evidence failing which a certified copy should have been produced.

In the submissions opposing the appeal, the respondent’s counsel did not address that aspect of the appellant’s case at all, and we think that he is quite plainly right in arguing that what was produced was not a document that could be relied on in proof of the complainant’s age. Things are only made worse by the fact that the document itself purports to have been issued before the birth of the complainant, evidence of which it purported to be, which is a logical impossibility. The document, as is, is therefore of clearly no probative value.

There was no age assessment as such that was done on the complainant, while the P3 Form that was produced indicated 17 years as the approximate age of the person examined, namely the complainant. The other evidence of age is that of the complainant herself which, other than being hearsay in character, is no more illuminating. She stated that on 14th November, 2009, she got married to the appellant and she was about 17 years having been born on 3rd October, 1991. Now, simple arithmetic shows that as at that date she would have been18 years and one month old. She stated that she conceived in May 2009 which would place her age at 17 years and 6 months at the time but, one cannot speak competently on her date of birth as she cannot have witnessed it and the only document that was produced of the same was of no probative value, as earlier stated.

PW2’s testimony regarding her age was simply that she was born in 1991. He did not give an exact date. Neither did her mother, PW3, who was content to merely say that the complainant was 17 years and 5 months when she exhibited signs of pregnancy. The totality of the evidence on age is that it did not possess the consistency and certainty that would have proved the exact date of the complainant’s birth beyond reasonable doubt. We would therefore agree with the appellant’s complaint that had the learned Judge gone into an analysis of the evidence with the thoroughness that was required of her, she would probably have arrived at a different conclusion. In failing to engage in that exhaustive re-evaluation, she fell into error and the lingering doubts must be resolved in favour of the complainant.

The next troubling issue is that the complainant’s evidence appears to have been procured by duress from the police. She stated as follows;

“My parents chased me away when they realized that I was pregnant. I was then 6 months pregnant. I went and lived with accused and when I was arrested. I refused to tell police anything. I was locked in for 3 days. I now did my statement and was released, I went home. The accused person was arrested. The accused had another wife but he rented for me a house in Makuyu. I was a second wife. I now have his child.”

The pressure also seems to have come from her parents to whom she wrote some two letters threatening to kill herself. The question that arises is whether it is lawful for a girl who is already over 18 years of age and is a mother, and who has chosen not to testify against the father of her child, whom she considers to be her husband, to be locked up in police cells to force her to testify against the man. What this kind of conduct on the part of the police does is raise doubts as to the bona fides of the prosecution. In this case, it is made worse by the admitted demand by the complainant’s father, in a meeting at the Chief’s office, attended by two elders no less, for the sum of Kshs. 80,000 from the appellant who, incidentally, had been his tenant. His testimony was that;

“After the girl cleared her exams she went missing. After I had been told, I had the chief summons the accused and was told to move out of my houses. When she went missing, my wife saw her in the house of accused. I went and informed police and they went for her. This girl had written some letters while were together but left after putting the letter on the door pigeon. The girl was born in 1991. She was not 18 years at the time she became pregnant. She became 18 years after the birthday. Later accused was arrested and charged. The chief had said we agree and I asked for Kshs. 80,000/= he said that he cannot agree. If he paid we could have sat and sorted out. The chief and the two elders were present. The child is now with me. She now gave birth. Even when she was in the maternity the accused came to see her. He was arrogant and was stating that this is his child.”

During cross examination PW2 stated that the Kshs. 80,000 “was to take care of the education expenses” he had used on the complainant and not dowry, but the critical point is the admission that had it been paid the matter would have rested. The picture that emerges is of a father righteously indignant that his daughter has been seduced and put in the family way, and who would have the culprit prosecuted unless he would pay some kind of compensation. This, too, raises questions as to whether the prosecution was for the proper purpose of enforcing the law or settling a score. At any rate, the effect is to whittle the reprobate value of the father’s evidence and to lend credence to the appellants contention that both the father and chief did know that the girl was of age. The evidence of PW2, properly evaluated, would have been in the category of what this Court described in NDUNGU KIMANYI vs. REPUBLIC [1979] KLR 282;

“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unrealiable witness which makes it unsafe to accept his evidence.”

This now brings us to the last issue, which is the appellant’s defence that he believed that the complainant was over 18 years old. He maintained that he had a relationship with her and that she was of a marriageable disposition. When she got pregnant she came to his house and in fact the investigating officer found her with the appellant’s wife. The complainant knew that he was married and she was prepared to be his second wife.

The Act provides as follows in section 8(5) and (6):

“(5) It is a defence to a charge under this section if-

(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and

(b)the accused reasonably believed that the child was over the age of eighteen years.

(6) The belief referred to in subsection (5)(b)is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”

Subsection (5) states that it is a defense to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. We think it a rather curious provision in so far as it is set in conjunctive as opposed to disjunctive terms which would seem to be more logical as opposed to the current rendition. We would think that once a person has actually been deceived into believing a certain state of things, it adds little to require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualification to subsection (5)(b) that separates it from the belief proceeding from deception in subsection (5)(a). We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.

We think also that it stands to reason that a person is more likely to be deceived into believing that a child is over the age of 18 years if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely the deception, and the more likely the belief that he or she is over the age of 18 years.

We find merit in the appellant’s contention that in all the circumstances of the case he reasonably believed that the complainant was over the age of 18 years. The burden of proving that deception or belief fell upon the appellant, but the burden is on a balance of probabilities and is to be assessed on the basis of the appellant’s subjective view of the facts. Thus, whereas indeed the complainant was still in school in Form 4, that alone would not rule out a reasonable belief that she would be over 18 years old. It is also germane to point out that a child need not deceive by way of actively telling a lie that she is over the age of 18 years. We would give the term deceive the ordinary dictionary meaning which is to;

“Deliberately cause (someone) to believe something that is not true or (of a thing) given a mistaken impression to.”

(Per the Concise Oxford English Dictionary, 12th Edn. 2011).

So understood, we would think that had the two courts below properly directed their minds to the appellant’s defense and the totality of the circumstances of this case, they would in all likelihood have arrived at a different conclusion on it. It was a non-direction that they did not do so, rendering the conviction unsafe.

We need to add as we dispose of this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a younger age than 16 years. We think it is rather unrealistic to assume that teenagers and maturing adults in the sense employed by the English House of Lords in GILLICK vs. WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY [1985] 3 ALL ER 402, do not engage in, and often seek sexual activity with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps. As Lord Scarman put it in that case (at p421);

“If the law should impose on the process of „growing up? fixed limits where nature knows only a continuous process, the price would be artificially and a lack of realism in an area where the law must be sensitive to human development and social change.” At p. 422.

The law also referred to the judgment of Chief Justice Lord Parker in R vs. HOWARD [1965] 3 ALL ER 684 at 685;

“…where he ruled that in the case of prosecution charging rape of a girl under 16 the crown must prove either lack of her consent or that she was not in a position to decide whether to consent or resist and added the comment that „there are many girls who know full well what it is all about and can properly consent.?”

Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion. In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalized and even then the sentences are much less stiff at a maximum of 2 years for children between 14 to 16 years of age. See Archbold Criminal Pleading, Evidence and Practice, [2002] p1720. The same goes for a great many other jurisdictions. A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.

For the reasons we have set out herein, we find that the appellant’s conviction was not safe, given the full circumstances of the case and the sentence, clearly imposed on the basis of a mandatory minimum was clearly harsh and excessive.

We allow the appeal, quash the conviction and set aside the sentence.

The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Dated and delivered at Nairobi this 22^nd day of March, 2019.

R. N. NAMBUYE

JUDGE OF APPEAL

D. K. MUSINGA

JUDGE OF APPEAL

P.O. KIAGE

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR

Constitutional Law-fundamental rights- right to life and personal liberty- sexual orientation-what principles underlay sexual orientation of adult same-sex couples as an element of the rights to personal liberty, dignity, privacy and equality?- Constitution of India, 1950, articles 14, 21

Words and phrases- definition of the word carnal- pertaining to the fleshly nature or to bodily appetites; sensual; sexual; pertaining to the flesh or to the body; not spiritual; hence worldly-New International Webster’s Comprehensive Dictionary of the English Language(Deluxe Encyclopedic Edition, 1996)

Brief Facts:

Writ petitions were filed before the Delhi High Court challenging the constitutional validity of section 377 of the India Penal Code, (IPC) insofar as it criminalized consensual sex between adult same-sex couples within the confines of their homes or other private places.A Division Bench of the Delhi High Court finally upheld the plea of the petitioners.

The High Court of Delhi declared that section 377 of the IPC, insofar it criminalised consensual sexual acts of adults (everyone who was 18 years of age and above) in private, was violative of articles 21, 14 and 15 of the Constitution of India. The impetus of that decision was what led to a three-Judge Bench order to refer the correctnessand re-consideration of the case of Suresh Kumar Koushal & Anr v Naz Foundation & Ors which had earlier held section 377 of the IPC constitutional to a larger Bench, the Supreme Court.

Issues:

i. Whether section 377 of the IPC contravened article 14 on equality before the law, article 15 on non-discrimination and article 21 on protection of life and personal liberty of the Constitution insofar as it criminalized consensual sex between adult same-sex couples within the confines of their homes or other private places.

ii. What principles underlay sexual orientation of adult same-sex couples as an element of the rights to personal liberty, dignity, privacy and equality?

iii. What was the correctness of the case of Suresh Kumar Koushal & Anr v Naz Foundation & Ors which had earlier held section 377 of the IPC constitutional?

Relevant Provisions of the Law

The Indian Penal Code, 1860 Act No. 45 of 1860

Section 377-Unnatural offences

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Held

From an analysis of comparative jurisprudence on sexual orientation from across the world, the following principles emerged:
1. sexual orientation was an intrinsic element of liberty, dignity, privacy, individual autonomy and equality;
2. intimacy between consenting adults of the same-sex was beyond the legitimate interests of the state;
3. sodomy laws violated equality by targeting a segment of the population for their sexual orientation;
4. such a law perpetrated stereotypes, lent authority of the state to societal stereotypes and had a chilling effect on the exercise of freedom;
5. the right to love and to a partner, to find fulfillment in a same-sex relationship was essential to a society which believed in freedom under a constitutional order based on rights;
6. sexual orientation implicated negative and positive obligations on the state. It not only required the state not to discriminate, but also called for the state to recognise rights which brought true fulfillment to same-sex relationships; and
7. the constitutional principles which had led to decriminalization had to continuously engage in a rights discourse to ensure that same-sex relationships found true fulfillment in every facet of life. The law could not discriminate against same-sex relationships. It had to also take positive steps to achieve equal protection.
LGBTor LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex and Queer minorities (LGBT) individuals living under the threats of conformity grounded in cultural morality had been denied a basic human existence. They had been stereotyped and prejudiced. Constitutional morality required the Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living. Constitutional morality required that the Court had to act as a counter majoritarian institution which discharged the responsibility of protecting constitutionally entrenched rights, regardless of what the majority believed. Constitutional morality had to turn into a habit of citizens. By respecting the dignity of LGBT individuals, the Court was only fulfilling the foundational promises of the Constitution.
Sexual orientation was integral to the identity of the members of the LGBT communities. It was intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 of the IPC (section 377) was founded on moral notions which were an anathema to a constitutional order in which liberty had to trump over stereotypes and prevail over the mainstreaming of culture. The Constitution, above all, was an essay in the acceptance of diversity. It was founded on a vision of an inclusive society which accommodated plural ways of life.
The impact of section 377 had travelled far beyond criminalising certain acts. The presence of the provision on the statute book had reinforced stereotypes about sexual orientation. It had lent the authority of the state to the suppression of identities. The fear of persecution had led to the closeting of same sex relationships. A penal provision had reinforced societal disdain. Sexual and gender based minorities could not live in fear, if the Constitution had to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guaranteed to them an equal citizenship. In de-criminalising such conduct, the values of the Constitution assured to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices.
The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships had a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopted a simple principle: the state had no business to intrude into those personal matters. Nor could societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.
The case had had a great deal to say on the dialogue about the transformative power of the Constitution. In addressing LGBT rights, the Constitution spoke – as well – to the rest of society. In recognising the rights of the LGBT community, the Constitution asserted itself as a text for governance which promoted true equality. It did so by questioning prevailing notions about the dominance of sexes and genders. In its transformational role, the Constitution directed the attention to resolving the polarities of sex and binarities of gender. The ability to survive as a free society would depend upon whether constitutional values could prevail over the impulses of the time.
The ability of a society to acknowledge the injustices which it had perpetuated was a mark of its evolution. In the process of remedying wrongs under a regime of constitutional remedies, recrimination gave way to restitution, diatribes paved the way for dialogue and healing replaced the hate of a community. For those who had been oppressed, justice under a regime committed to human freedom, had the power to transform lives. In addressing the causes of oppression and injustice, society transformed itself. The Constitution had within it the ability to produce a social catharsis. The importance of the case lay in telling the Court that reverberations of how it addressed social conflict in the times would travel far beyond the narrow alleys in which they were explored.
The essential ingredient required to constitute an offence under section 377 was carnal intercourse against the order of nature, which was punishable with life imprisonment, or imprisonment of either description up to ten years. Section 377 applied irrespective of gender, age, or consent. The expression carnal intercourse used in section 377 was distinct from sexual intercourse which appeared in sections 375 and 497 of the IPC. The phrase carnal intercourse against the order of nature was not defined by section 377, or in the IPC. The courts had earlier interpreted the term carnal to refer to acts which fell outside penile-vaginal intercourse, and were not for the purposes of procreation.
Whilst a great deal of scientific research had examined possible genetic, hormonal, developmental, psychological, social and cultural influences on sexual orientation, no findings had conclusively linked sexual orientation to any one particular factor or factors. It was believed that one’s sexuality was the result of a complex interplay between nature and nurture. Sexual orientation was an innate attribute of one’s identity, and could not be altered. Sexual orientation was not a matter of choice. It manifested in early adolescence. Homosexuality was a natural variant of human sexuality.
Heterosexual and homosexual behaviors were both normal aspects of human sexuality. Both had been documented in many different human cultures and historical eras, and in a wide variety of animal species. There was no consensus among scientists about the exact reasons why an individual developed a heterosexual, bisexual, or homosexual orientation. According to current scientific and professional understanding, however, the core feelings and attractions that formed the basis for adult sexual orientation typically emerged between middle childhood and early adolescence. Those patterns of sexual attraction generally arose without any prior sexual experience. Most or many gay men and lesbians experienced little or no choice about their sexual orientation.
In general, homosexuality as a sexual orientation referred to an enduring pattern or disposition to experience sexual, affectional, or romantic attractions primarily to people of the same sex. It also referred to an individual’s sense of personal and social identity based on those attractions, behaviours, expressing them, and membership in a community of others who shared them. It was a condition in which one was attracted and drawn to his/her own gender, which was evidenced by the erotic and emotional involvement with members of his/her own sex.
The World Health Organization removed homosexuality from the list of diseases in the International Classification of Diseases in the publication of ICD-10 in 1992. In India, the Indian Psychiatric Society had also opined that sexual orientation was not a psychiatric disorder. It was noted that there was no scientific evidence that sexual orientation could be altered by any treatment and that any such attempts could in fact lead to low self-esteem and stigmatization of the person.
Section 377 operated in a vastly different manner for two classes of persons based on their sexual orientation i.e. the LGBT persons and heterosexual persons. Section 377 penalised all forms of non-penile-vaginal intercourse. In effect, voluntary consensual relationships between LGBT persons were criminalised in totality. It was contended that section 377 discriminated against adults of the same gender, from having a consensual sexual relationship in private, by treating it as a penal offence, and hence was violative of article 14 of the Constitution on equality before the law (article 14). The twin-test of classification under article 14 provided that:
1. there should be a reasonable classification based on intelligible differentia; and,
2. the classification should have a rational nexus with the objective sought to be achieved.
  The Court had before granted equal protection of laws to transgender persons. There was therefore no justification to deny the same to LGBT persons.
A person’s sexual orientation was intrinsic to their being. It was connected with their individuality, and identity. A classification which discriminated between persons based on their innate nature, would be violative of their fundamental rights, and could not withstand the test of constitutional morality. The import and effect of section 377 was that while a consensual heterosexual relationship was permissible, a consensual relationship between LGBT persons was considered to be carnal, and against the order of nature.
Section 377 created an artificial dichotomy. The natural or innate sexual orientation of a person could not be a ground for discrimination. Where legislation discriminated on the basis of an intrinsic and core trait of an individual, it could not form a reasonable classification based on an intelligible differentia. In contemporary civilised jurisprudence, with states increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being perverse, deviant, or unnatural. The proscription of a consensual sexual relationship under section 377 was not founded on any known or rational criteria. Sexual expression and intimacy of a consensual nature, between adults in private, could not be treated as carnal intercourse against the order of nature.
Emphasising on the second part of article 14 which enjoined the state to provide equal protection of laws to all persons, the Court earlier elucidated on the doctrine of manifest arbitrariness as a facet of article 14. Apart from the conventional twin-tests of classification discussed in the preceding paragraphs, a legislation, or part thereof, could also be struck down under article 14 on the ground that it was manifestly arbitrary. Manifest arbitrariness, therefore, had to be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something was done which was excessive and disproportionate, such legislation would be manifestly arbitrary.
Section 377 insofar as it criminalised consensual sexual acts between adults in private, was not based on any sound or rational principle, since the basis of criminalisation was the sexual orientation of a person, over which one had little or no choice. Further, the phrase carnal intercourse against the order of nature in section 377 as a determining principle in a penal provision was too open-ended, giving way to the scope for misuse against members of the LGBT community. Thus, apart from not satisfying the twin-test under article 14, section 377 was also manifestly arbitrary, and hence violative of article 14 of the Constitution.
The term sex, as it occurred in article 15 on non-discrimination (article 15) had been given an expansive interpretation by the Court to include sexual identity. Both gender and biological attributes constituted distinct components of sex. The biological characteristics, of course, included genitals, chromosomes and secondary sexual features, but gender attributes included one’s self-image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of sex under articles 15 and 16 therefore included discrimination on the ground of gender identity. The expression sex used in articles 15 and 16 was not just limited to biological sex of male and female, but intended to include people who considered themselves neither male nor female. The prohibition against discrimination under article 15 on the ground of sex should therefore encompass instances where such discrimination took place on the basis of one’s sexual orientation.
Discrimination on the basis of the immutable status tended to deny one an autonomous life. Its result was that further choices were constrained not mainly by one’s own choices, but by the choices of others. Because those choices of others were based on the immutable status, people’s own choices could make no difference to them. And discrimination on the ground of fundamental choices could be wrongful by the same token. To lead an autonomous life one needed an adequate range of valuable options throughout that life. There were some particular valuable options that each one should have irrespective of their other choices. Where a particular choice was a choice between valuable options which ought to be available to people whatever else they could choose, it was a fundamental choice.
Where there was discrimination against people based on their fundamental choices it tended to skew those choices by making one or more of the valuable options from which they had to choose more painful or burdensome than others. Race, caste, sex, and place of birth were aspects over which a person had no control, ergo they were immutable. On the other hand, religion was a fundamental choice of a person. Discrimination based on any of those grounds would undermine an individual’s personal autonomy. The LGBT community was a sexual minority which had suffered from unjustified and unwarranted hostile discrimination, and was equally entitled to the protection afforded by article 15.
Article 21 on protection of life and personal liberty (article 21) provided that no person would be deprived of his life or personal liberty except according to the procedure established by law. Such procedure established by law had to be fair, just and reasonable. The right to life and liberty afforded protection to every citizen or non-citizen, irrespective of their identity or orientation, without discrimination.
Article 21 was the most precious human right and formed the ark of all other rights. The right to life could not be restricted to a mere animal existence, and provided for much more than only physical survival. The right to life included the right to live with human dignity and all that went along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. It had to in any view of the matter include the right to the basic necessities of life and also the right to carry on such functions and activities as constituted the bare minimum expression of the human-self. Every act which offended against or impaired human dignity would constitute deprivation pro tanto of the right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stood the test of other fundamental rights.
Although dignity was an amorphous concept which was incapable of being defined, it was a core intrinsic value of every human being. Dignity was considered essential for a meaningful existence. Each person’s self-defined sexual orientation and gender identity was integral to their personality and was one of the most basic aspects of self-determination, dignity and freedom.
Sexual orientation was innate to a human being. It was an important attribute of one’s personality and identity. Homosexuality and bisexuality were natural variants of human sexuality. LGBT persons had little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, were entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They were entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices had to be protected under article 21. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression.
While recognising the unique worth of each person, the Constitution did not presuppose that a holder of rights was an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledged that people lived in their bodies, their communities, their cultures, their places and their times. The expression of sexuality required a partner, real or imagined. It was not for the state to choose or arrange the choice of partner, but for the partners to choose themselves. Section 377 insofar as it curtailed the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment, was violative of article 21. It inhibited them from entering and nurturing enduring relationships. As a result, LGBT individuals were forced to either lead a life of solitary existence without a companion, or lead a closeted life as unapprehended felons.
The social ostracism against LGBT persons prevented them from partaking in all activities as full citizens, and in turn impeded them from realising their fullest potential as human beings. On the issue of criminalisation of homosexuality, only the most wilful blindness could obscure the fact that sexual intimacy was a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.
It sufficed to acknowledge that adults could choose to enter upon the relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality found overt expression in intimate conduct with another person, the conduct could be but one element in a personal bond that was more enduring. The liberty protected by the Constitution allowed homosexual persons the right to make the choice. Thus, section 377 prevented LGBT persons from leading a dignified life as guaranteed by article 21.
The right to privacy had been recognised to be an intrinsic part of the right to life and personal liberty under article 21. Sexual orientation was an innate part of the identity of LGBT persons. Sexual orientation of a person was an essential attribute of privacy. Its protection lay at the core of fundamental rights guaranteed by articles 14, 15, and 21. The right to privacy was broad-based and pervasive under the Constitutional scheme, and encompassed decisional autonomy, to cover intimate/personal decisions and preserved the sanctity of the private sphere of an individual.
The right to privacy was not simply the right to be let alone, and had travelled far beyond that initial concept. It now incorporated the ideas of spatial privacy, and decisional privacy or privacy of choice. It extended to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted state interference. Section 377 affected the private sphere of the lives of LGBT persons. It took away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibited LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inhered in the most intimate spaces of one’s existence.
Privacy recognised that everyone had a right to a sphere of private intimacy and autonomy which allowed them to establish and nurture human relationships without interference from the outside community. The way in which expression was given to sexuality was at the core of the area of private intimacy. If, in expressing sexuality, everyone acted consensually and without harming one another, invasion of that precinct would be a breach of their privacy. Just like other fundamental rights, the right to privacy was not an absolute right and was subject to reasonable restrictions. Any restriction on the right to privacy had to adhere to the requirements of legality, existence of a legitimate state interest, and proportionality.
The right to health and access to healthcare were also crucial facets of the right to life guaranteed under article 21 of the Constitution. LGBT persons being a sexual minority had been subjected to societal prejudice, discrimination and violence on account of their sexual orientation. Since section 377 criminalised carnal intercourse against the order of nature it compelled LGBT persons to lead closeted lives. As a consequence, LGBT persons were seriously disadvantaged and prejudiced when it came to access to health-care facilities. That resulted in serious health issues, including depression and suicidal tendencies amongst members of the community.
LGBT persons, and more specifically the men who have sex with men (MSM), and transgender persons were at a higher risk of contracting HIV as they lacked safe spaces to engage in safe-sex practices. They were inhibited from seeking medical help for testing, treatment and supportive care on account of the threat of being exposed and the resultant prosecution. Higher rates of prevalence of HIV-AIDS in MSM, who were in turn married to other people of the opposite sex, coupled with the difficulty in detection and treatment, made them highly susceptible to contraction and further transmission of the virus.
It was pertinent to mention that in India the Mental Healthcare Act, 2017 came into force on July 7, 2018. Sections 18(1) and (2) read with 21(1)(a) of the Mental Healthcare Act, 2017 provided for the right to access mental healthcare and equal treatment of people with physical and mental illnesses without discrimination, inter alia, on the basis of sexual orientation. That gave rise to a paradoxical situation since section 377 criminalised LGBT persons, which inhibited them from accessing health-care facilities, while the Mental Healthcare Act, 2017 provided a right to access mental healthcare without discrimination, even on the ground of sexual orientation.
Article 19(1) (a) guaranteed freedom of expression to all citizens. However, reasonable restrictions could be imposed on the exercise of the right on the grounds specified in article 19(2). LGBT persons expressed their sexual orientation in myriad ways. One such way was engagement in intimate sexual acts like those proscribed under section 377. Owing to the fear of harassment from law enforcement agencies and prosecution, LGBT persons tended to stay in the closet. They were forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual persons, they were inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and a dignified existence. It also had an impact on their mental well-being.
Gender identity was an important aspect of personal identity and was inherent to a person. It was held that transgender persons had the right to express their self-identified gender by way of speech, mannerism, behaviour, presentation and clothing, etc. The Court also noted that like gender identity, sexual orientation was integral to one’s personality, and was a basic aspect of self-determination, dignity and freedom.
Even though the constitutional freedom of speech and expression was not absolute and could be subjected to reasonable restrictions on grounds such as decency and morality among others, stress had to be laid on the need to tolerate unpopular views in the sociocultural space. The framers of the Constitution recognised the importance of safeguarding the right since the free flow of opinions and ideas was essential to sustain the collective life of the citizenry. While an informed citizenry was a precondition for meaningful governance in the political sense, a culture of open dialogue when it came to societal attitudes had to be promoted.
Notions of social morality were inherently subjective and the criminal law could not be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality were not coextensive. Therefore, section 377 could not be justified as a reasonable restriction under article 19(2) on the basis of public or societal morality, since it was inherently subjective.
The fallacy in Suresh Kumar was that:
a) The offence of carnal intercourse against the order of nature had not been defined in section 377. It was too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private. The requirement that crimes had to be defined with appropriate definiteness was regarded as a fundamental concept in criminal law and had to be regarded as a pervading theme of the Constitution since the decision in Maneka Gandhi. The underlying principle was that every person was entitled to be informed as to what the state commanded or forbade and that the life and liberty of a person could not be put in peril on an ambiguity.
b) The mere fact that the LGBT persons constituted a miniscule fraction of the country’s population could not be a ground to deprive them of their fundamental rights guaranteed by Part III of the Constitution. Even though the LGBT constituted a sexual minority, members of the LGBT community were citizens of the country who were equally entitled to the enforcement of their fundamental rights guaranteed by articles 14, 15, 19, and 21.
c) Even though section 377 was facially neutral, it had been misused by subjecting members of the LGBT community to hostile discrimination, making them vulnerable and living in fear of the ever-present threat of prosecution on account of their sexual orientation. There was need to remember that the founding fathers of the Constitution never thought that the Constitution was mirror of perverse social discrimination. On the contrary, it promised the mirror in which equality would be reflected brightly. Thus, all the sexual identities, including sexual minorities, including transgender communities were entitled to be totally protected. The Constitution enabled change of beliefs, greater understanding and was also an equally guaranteed instrument to secure the rights of sexually despised minorities.
d) The conclusion in Suresh Kumar to await legislative amendments to the provision would not be necessary. Once it was brought to the notice of the Court of any violation of the fundamental rights of a citizen, or a group of citizens the Court would not remain a mute spectator, and wait for a majoritarian government to bring about such a change. Given the role of the Court as the sentinel on the qui vive, it was the Constitutional duty of the Court to review the provisions of the impugned section, and read it down to the extent of its inconsistency with the Constitution.
In the present case, reading down section 377 was necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it was inconsistent with Part III of the Constitution.
History owed an apology to the members of the LGBT community and their families, for the delay in providing redressal for the ignominy and ostracism that they had suffered through the centuries. The members of the community were compelled to live a life full of fear of reprisal and persecution. That was on account of the ignorance of the majority to recognise that homosexuality was a completely natural condition, part of a range of human sexuality. The mis-application of the provision denied them the fundamental right to equality guaranteed by article 14. It infringed the fundamental right to non-discrimination under article 15, and the fundamental right to live a life of dignity and privacy guaranteed by article 21. The LGBT persons deserved to live a life unshackled from the shadow of being unapprehended felons.
The Union of India would take all measures to ensure that the judgment was given wide publicity through the public media, which included television, radio, print and online media at regular intervals, and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the states, would be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in the judgment.

Writ Petitions allowed.

Orders

It was declared that insofar as section 377 criminalised consensual sexual acts of adults (i.e. persons above the age of 18 years who were competent to consent) in private, was violative of articles 14, 15, 19, and 21 of the Constitution.
It was, however, clarified that such consent had to be free consent, which was completely voluntary in nature, and devoid of any duress or coercion.
The declaration of the aforesaid reading down of section 377 would not, however, lead to the re-opening of any concluded prosecutions, but could certainly be relied upon in all pending matters whether they were at the trial, appellate, or revisional stages.
The provisions of section 377 would continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.
The judgment in Suresh Kumar Koushal & Anr. v Naz Foundation & Ors. was thereby overruled.

Relevance to the Kenyan Situation

The Constitution of Kenya, 2010 provides for the national values and principles of governance in article 10 (2) (b) to include human dignity, non-discrimination and equality.

Article 27 provides for equality and freedom from discrimination and that every person is equal before the law and has the right to equal protection and equal benefit of the law. Sub-article 4 provides further that the state shall not discriminate directly or indirectly against any person on any ground, including sex. Article 28 provides for human dignity and that every person has inherent dignity and the right to have that dignity respected and protected.

The Penal Code Cap 63 Laws of Kenya providesin section 162 that any person who has carnal knowledge of any person against the order of nature; or permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.

Section 165 provides that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Article 1 of the Universal Declaration of Human Rights, 1948 provides that all human beings are born free and equal in dignity and rights. Article 2 provides that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind which includes sex. Article 7 provides that all persons are equal before the law and are entitled without any discrimination to equal protection of the law.

Kenyan law as can be seen above prohibits sex between adults of the same sex.

There has been case law in Kenya pertaining to issues to do with same sex adult couples. In Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR, the petitioner sought to register an NGO which had at its core the objective of protection of the human rights of those who belong to the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community. His application was made to the Non-Governmental Organizations’ Co-ordination which declined it contending that the Penal Code criminalized gay and lesbian liaisons as they went against the order of nature.

The Court however held that the Constitution of Kenya, 2010 in article 36 granted every person the right to form an association of any kind and that an application to form an association could only be refused on reasonable grounds. It went on further to state that the fact that the State did not set out to prosecute people who confessed to be lesbians and homosexuals in the country was a clear manifestation that such sexual orientation was not necessarily criminalized. More importantly, the Penal Code did not criminalize the right of association of people based on their sexual orientation, and did not contain any provision that limited the freedom of association of persons based on their sexual orientation.

By refusing to register the proposed NGO because it objected to the name chosen for it, or because it considered that the group whose interests the proposed NGO sought to advocate was not morally acceptable in Kenyan society, then the Board had arrogated to itself, contrary to the Constitution, the power to determine which person or persons were worthy of constitutional protection, and whose rights were guaranteed under the Constitution.

In Eric Gitari v Attorney General & another [2016] eKLR, the petitioner brought a petition before the High Court seeking inter-alia a declaration of sections 162 and 165 of the Penal Code, Cap 63 to be unconstitutional, and accordingly void and invalid to the extent that they purport to criminalise private consensual sexual conduct between adult persons of the same sex, as mandated by articles 2 (4), and 23 (3) (d) of the Constitution.

The Court held that the matter affected more than the Petitioner. The entire LGBTIQ community would be affected by the decision and considering the discussion on the status of the members of the LGBTIQ community in the Republic, was no small exploit. Therefore, the matters raised in the Petition were weighty and had important consequences. It added that the issues raised substantial questions of law under article 165 (3) (d) of the Constitution that deserved the constitution of a bench of Judges by the Chief Justice for hearing and determination.

The bench is yet to be constituted so that it can be decided whether the two sections of the Penal Code, Cap 63 Laws of Kenya are unconstitutional.

Matters of the LGBTIQ are sensitive emerging issues currently globally and various international jurisdictions are decriminalizing homosexuality with India being the latest. The case will therefore serve as an important precedent should Kenya decide to also decriminalize homosexuality or when there are pending matters to be determined in courts on the rights of the LGBTIQ community

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