Health and Human Rights Challenges for Sexual Minorities in Kenya

HEALTH RIGHTS TODAY [ ] SPECIAL EDITION1
SPECIAL EDITION / SEPTEMBER 2009
Health and Human Rights Challenges for
Sexual Minorities
By David Kuria, Manager - Gay and Lesbian Coalition of Kenya (GALCK)
of other-sex marriages while
maintaining same-sex liaisons.
Unfortunately, in the era of HIV/
AIDS, this double lifestyle has health
consequences that go beyond the
minority group. According to the
Modes of Transmission Survey
(MOT 2008), 15.2% of all new HIV
infections are through Men having
sex with Men - MSM. Further
research reveals that 60% of these
MSM in Kenya are also currently
living in heterosexual relationships.
The health impact of same-sex
sexuality then, is not limited to the
same-sex practicing people.
Kenya is one of the 80 countries in
the world that has legal sanctions
against same-sex sexuality (Penal
code 162 - 165). The health
impact of this criminalization has
been recognized by the National
Aids Control Council - the body
mandated to control the spread of
HIV - which now acknowledges that
the current laws present a challenge
to the giving of HIV prevention
information to what they call “hard
to reach” communities. They are
hard to reach because coming out
Group discussion on health and human rights
continued on page 3
Transgender and Intersex), does
not stop them from being born and
live in our society, any more than
denial of their existence creates
a heterosexual compliant society.
What denial and stigmatization does
is to make sexual minorities develop
coping strategies in a very hostile
The use of these stigma
enforcing terms in reference to
LGBTI (Lesbians, Gay, Bisexual,
environment. The most common
coping mechanism is to conform
to the hetero-normative lifestyle
TThat sexual minorities are one of the
most discriminated and marginalized
communities in the country today
is a truism that requires no further
elaboration. Not only are they
criminalized, they have also been
determined to be aberrant, un-natural
and un-African.

Editorial
W Kenya. The edition should also
be seen as mobilization tool for
calling upon the government,
development partners and
civil society organizations
to appreciate existence of
sexual minorities in Kenya,
challenges and implications of
not promoting access to HIV
prevention, treatment, care and
support.
In deed, to this group, sexual
minorities remain part of our
society and denial of their
existence is a major threat
to Kenya’s HIV and health
programmes. HERAF will
continue advocating for the
rights of the sexual minorities
in collaboration with other
stakeholders. It is for this
reason that we call upon the
government and all stakeholders
in health and human rights to
join in advocating for the rights
of the sexual minorities.
We wish you a happy reading.
HERAF Editorial Team
About us:
Health Rights Advocacy Forum (HERAF) is a non-
governmental organization that brings together
Health professionals, NGOs, FBOs, PLWHA
and other organizations that campaign for the
recognition of health as a fundamental human right
in Kenya. It was established in 2006, as a project of
the Kenya Human Rights Commission (KHRC) and
registered as a non-governmental organization by
the NGO coordination board in 2007.
Our Vision
A Kenya where health is upheld and enjoyed as a
fundamental human right.
Our Mission
Working to be a leading human rights organization
that promotes and empowers Kenyans to realize
the right to health for all.
Health Seeking Behaviour of MSM
By Grace Gathua, HERAF
private and public as long as the
health care provider appreciates
their sexual orientation.
Unfortunately, this is not the case
in most of these health facilities.
Confidentiality, affordability and
quality of care are major concerns in
meeting the HIV and STI prevention
needs of MSM. There are also cases
of discrimination, stigmatization and
refusal for services.
A qualitative survey involving in-
depth interviews with gays in South
Africa’s Guateng Township showed
how health care providers handle
MSMS. The narration was as follows:
Some of them don’t treat us with
respect. Sometimes if you are having
continued on page 5 
Disclaimer: The views contained in
this newsletter are not necessarily
HERAF’s but the authors.
This newsletter is supported by UHAI,
EASHRI - Akiba Uhaki Foundation, the
Human Rights & Social Justice Fund
Welcome to this special
Edition of our Newsletter,
Health Rights Today, from
HERAF. As her endeavor to
promote the right to health
for all Kenyans irrespective of
their socio-economic, cultural
and sexual orientation,
HERAF is in this edition
shedding light on sexual
minorities in Kenya and their
vulnerability to HIV infection.
The newsletter has also
provided insight into why
the country needs to give
attention to sexual minorities,
challenges and obstacles that
are encountered at health and
HIV programmes levels.
There is recognition that
little data and documentation
of the rights of sexual
minorities exists in Kenya.
This publication is therefore
expected to form a resource
material that can inform and
educate health workers and
the general public about the
rights of sexual minorities in
Health workers going through
hospital records
TThe trend of health seeking
behavior for MSM indicates
resistance to reveal anal symptoms
at clinics and hospitals. This has
been due to the risk of exposing
their homosexuality which is
less tolerated in the Kenyan
community. The resistance is also
as a result of the scorning and
ignorance by health care staff as
well as lack of confidentiality.
Studies have shown that MSMS
would comfortably seek for
services from hospitals, health
centers, dispensaries and also
stand alone VCT centres both

continued from page 1
Health and Human Rights Challenges for Sexual Minorities
openly and self-identifying presents
to them unfavorable legal challenges
not to speak of “outing” themselves
to extreme forms of discrimination
and stigmatization.
It is often said that numbers do
not lie - hence it’s often good to
use them to paint the real picture
of the HIV problem both for the
sexual minorities and for the entire
Kenyan society. In discrete numbers,
approximately 15,000 MSM get
infected each year. Of these, 60%
of them are engaged in heterosexual
relationships. Hence 9,000 female
partners of the MSM stand exposed
to the AIDS causing Virus. Yet, one
of the major reasons why gay men
in Africa engage in heterosexual
relationships is to fit in, - essentially
to avoid the stigmatizing labels, and
not to be suspected of engaging
in criminal activities outlawed in
sections 162 - 163 of the penal
code.
As a country, we should have the
courage to interrogate our values.
It might have been important for
us to discriminate against sexual
minorities, as a “true African
value,” but perhaps we hold life in
higher regard. As such then, we
might come to the conclusion that
giving life saving information and
prevention commodities to sexual
minorities, is in the interest of the
higher value of life. This exercise
is, however, curtailed through the
current legal infrastructure, and
we just might be moved to the
conclusion that it needs to change.
If we get there, as a society, many
lives will be saved.
Yet, HIV is hardly the only health
challenge faced by sexual minorities.
Transgender and Inter-sex people
face considerable legal and health
challenges even while their
conditions are not criminalized.
Transgenderism is a condition also
known as gender identity disorder,
and there exists a treatment
protocol. Unfortunately, because of
being confused with homosexuals,
very few medical practitioners in
this country are willing to offer
health services to transgendered
people. As a result, treatments
such as sex-reassignment surgeries
are unavailable even though the
country has qualified personnel.
Additionally, appropriate hormone
therapies are unavailable or when
available, are extremely expensive
and thus beyond the reach of every
transgender person.
It is important to emphasize that
transgenderism is not criminalized,
rather, there is need to put in place
a legal system that deals with how
health services are offered to the
transgender people, not just to
protect their rights, but also to offer
standardization of their treatment.
The same case applies to Inter-
sex persons - often called by the
derogatory term - ‘hermaphrodites.’
Again this condition is not
criminal but clinical. Yet, because
of the arbitrary nature in which
determination of which sex/
gender to assign a child born
with this condition, and the lack
of accountability by the medical
fraternity, most Inter-sex people
often find themselves living with
conflicting gender identities as
adults. The LGBTI community
is now unanimous that the best
way to deal with children born
with ‘ambiguous genitalia’ is to
delay ‘corrective surgeries’ until
the children have identified their
preferred gender autonomously.
The corrective surgery, then will
reflect their inherent choice and not
an arbitrary decision by the doctor
or parent based on either biased
choice of gender or rudimentary
physical characteristics.
It should by now become clear that
sexuality is not as simple and clear
cut - black or white, gay or straight
and by extension right or wrong,
binaries that we are accustomed to.
Sexuality is complex and when the
government ignores this complexity
and chooses to criminalize one
section of the community, it cannot
be acceptable, and it is the society
as a whole that pays the price. The
huge price we pay for failing to give
sexual minorities HIV preventive
information and commodities, will
continue to rise until it will become
untenable, and at that time change
will be forced on us. The question
is, do we have to wait? Do we not
have sufficient intellect to recognize
the risks we expose our people
to, merely because we would like
continued on page 7 
It is important to
emphasize that
transgenderism is not
criminalized, rather, there
is need to put in place a
legal system that deals with
how health services are
offered to the transgender
people, not just to protect
their rights, but also to
offer standardization of
their treatment.

Sexual Minorities in Relation to HIV/
AIDS & the Legal Aspects on Sexual
Minorities
By Allan Achesa Maleche, LLB Hons Nrb, Dip Law (KSL) Dip Gender (Uppsala); Rachier & Amollo Advocates
and Kenya Legal & Ethical Issues Network on HIV & AIDS; amaleche@gmail.com
These rights are drawn from the
Universal Declaration of Human
Rights (UDHR) and are tailor made
for persons with different sexual
orientations and gender identities.
The Kenyan Constitution is silent
on the issues of LGBTI, but it
provides for the right to Non
Discrimination at Section 82,
though sexual orientation is not
specified as ground on which
one can be discriminated upon.
Sections 162 and 165 of the
Penal Code, Chapter 63 of the
laws of Kenya, outlaw, the acts of
Unnatural Offences and Indecent
practices against Males. Section
11 of the sexual offences act also
outlaws any indecent act with a
child or adult. These provisions
out law most of the practices
carried out by LGBTI and hence
they make them an illegal population.
This in turn makes LGBTI’s to live
secret lives to avoid interaction with
the criminal process of the law as
they are at risk of getting arrested,
because they are perceived as
criminals.
The legal challenges then faced by
LGBTI’s in the context of HIV &
AIDS is that, given that they are
perceived as an illegal community,
they experience difficulties in
accessing health care treatment in
terms of prevention and treatment
of HIV. Because of their different
sexual orientation and gender identity,
they are always at a risk of being
stigmatised and discriminated upon
in the healthcare settings and within
the community. Even though Section
36 of the HIV & AIDS Prevention and
Control Act outlaws discrimination in
health institutions on the basis of ones
HIV status, LGBTI; s who are HIV
positive still face such discrimination.
The fact that LGTBIs cannot access
healthcare services easily then
makes them a high-risk population
that is hard to reach for purposes of
treatment, thus they pose a higher
risk of spreading the virus to their
partners. Efforts are being made by
the government through the National
Aids Control Council to target these
most at risk populations through
their current strategic plan. Whether
or not to legalise or to decriminalise
the practices of LGTBI’s remains a
decision to be made by the Kenyan
people, through the constitutional
process.
S
Health professional students discussing health and human rights
Sexual minorities comprise of
Lesbians, Gays, Transgender and
Intersex (LGBTI). A lesbian is a
woman who is attracted to other
women whereas a gay man is one
who is attracted to other men. A
transgender is a man who chooses
to live or dress like a woman and
vice versa. An intersex on the
other hand is a person born with
a mixture of male and female
characteristics. These groups of
people exist in our society though
many deny this fact, due to our
cultural and religious upbringing.
The Yogyakarta Principles on the
Application of International Human
Rights Law in relation to Sexual
Orientation and Gender Identity,
of which Kenya is a signatory
to, spell out some of the human
rights that LGBTIs are entitled to.

Health Seeking Behaviors of MSM
Promoting the Rights of Sexual
Minorities
Compiled by Jerusha Chege, HERAF
rights and freedoms as other human
beings. Unfortunately the existence
of these provisions and principles
has not extended the full protection
to all victims of systematic
discrimination especially if the
victims are part of sexual minorities.
Unfortunately, homosexuality
remains criminalized in Kenya,
and even though there are few
prosecutions in the country on the
sections of the penal code (162
- 165), that criminalize it.
The sex minorities also face a lot
of stigma from the society as well
denial of their existence in the
community. They face similar stigma
while accessing health services and
thus shun getting medical
attention from the
health facilities. The
implication of this to the
society is the continued
spread of HIV since it
is estimated that 15%
of all new infections are
through men having sex
with men.
This implies that Kenya
is fighting a loosing battle
in the fight against HIV
by not acknowledging
the existence of the sexual
minorities who are already playing
a major role in spreading the HIV in
the country.
To arrest this situation, there is
need to accept the existence
of sexual minorities in Kenya.
Empowering health care providers
to change their attitude towards
the sexual minority groups will
enable the sexual minorities to
access HIV prevention, treatment,
care and support services. Once
this happens, the sexual minorities
will not shy away from the health
facilities but will access health
services willingly and thereby
contribute in reducing HIV
infection rates.
HERAF’S Website promoting health rights of
sexual minorities
J
sex without a condom and may be get
an STI, then you go to the clinic, the
nurse will ask questions like what was
in here? She means the anus. And that
makes us afraid of going to the clinic
to get treatment and that‘s why many
gay men get sick.
The illegalization of homosexuality
in Kenya under section 162 of the
penal code has also been blamed for
hindering access to health care by
MSMS. The country is yet to come
to terms and acknowledge the
needs of same sex couples.
There is therefore need to create a
forum for sharing and interactions
where MSM can freely interact with
health professionals, share their
concerns and openly discuss ways
of improving access to health and
HIV services devoid of stigma and
discrimination.
James Wilets describes ‘sexual
minority’ as including all individuals
who have traditionally been
distinguished by societies because of
their sexual orientation, inclination,
behaviors or gender gender identity
and does not include individuals
whose sexual identity is based upon
nonconsensual behavior.
In societies sexual minorities
are counted among the largest
minority groups since they share
common patterns of discrimination
worldwide. Currently, their rights
are an international issue and not
just regional. Human rights are
fundamental entitlements for people
simply because they are human
beings.
The Universal declaration of
Human Rights states that ‘all human
beings are born free and equal in
dignity and rights and recognizes
equal treatment for everyone.’
The African chatter on human and
peoples’ rights states in its preamble
that freedom, equality, justices and
dignity are essential objectives for
the achievement of the legitimate
aspiration of the African people.
These provisions imply that sexual
minorities by virtue of their status
as human beings, are entitled to the
same enjoyment of fundamental

Why MSM in Kenya Need Targeted
HIV Prevention
Compiled by Grace Gathua, HERAF
intercourse in the last three months
had all episodes without condoms.
Over 83% reported at least one
episode of unprotected anal sex
with any partner. In addition, 75%
(86) MSME and 40% (60) MSMW
reported receptive anal sex while
25% MSME and 32% MSMW
reported engaging in both receptive
and insertive anal sex.
According to the study 74% MSM
had sold sex for money and goods
for the last three months, where
93% were local residents. Some of
them had unprotected casual sex in
the last two weeks. Only 17% (49)
MSM respondents did not engage in
commercial sex.
The risk of HIV infection for
those reporting only receptive
anal sex was high as well as for
those reporting both receptive
and insertive anal sex as compared
to those reporting only insertive
anal sex. MSME were more likely
to participate in receptive anal
intercourse than MSMW.
According to the authors, there
is a distinct lack of services for
prevention, diagnosis and treatment
of diseases transmitted by anal sex
and of interventions targeted towards
MSM. They registered the need for
provision of appropriate intervention
targeting high risk marginalized group
{MSM} for further advances in HIV-1
prevention.
Other sources including National
Incidence Model report that MSM,
including those in prisons are most
at risk of HIV infection and therefore
there is a need for their recognition
in Kenya. Accordingly, they recorded
that MSM account for 15.2% of
new infections in the country with
higher recording in Nairobi 16.4%
and Coast 20.5%. The model shows
that a significant number of them are
exclusively homosexuals and may
even be married and therefore need
urgent intervention.
In conclusion, the MSM are not
adequately acknowledged in Kenya
with regard to the risk of HIV
infection that they are exposed
to and expose others to. There is
therefore the need to create the
awareness of HIV infection among the
MSM through targeted information,
education and communication
materials. The community and general
public should also be educated about
HIV&AIDS, health and rights of
MSMS.
Kenyans should be made aware
that MSMS are an integral part
of the Kenyan community and
they should not be stigmatized
or discriminated against when
dealing with access to HIV and
health services. The fight against
the HIV pandemic should embrace
the needs and challenges of all
vulnerable groups including MSMS.
AAlthough there has been existence
of MSM in Kenya, their vulnerability
to HIV infections has been largely
ignored. Little attention has been given
to the role that homosexuality and
anal sex plays in the HIV epidemic in
Kenya and Africa in general.
One of the impediments on research
on sex between men is criminalization
and stigmatization of the act in many
African countries including Kenya.
The research has been further made
difficult by personal bias, socio-
cultural, political and religious beliefs
and attitudes.
According to the study published
in November 2007 by the Kenya
Medical research institute KEMRI,
describing HIV prevalence and risk in
a large group of MSM in East Africa,
a conclusion was made that there is
need for urgent action to address HIV.
The study registered the following
statistics in regard to MSM and HIV:
Among the 285 MSM who were
identified, 114 men reported to having
sex with men exclusively (MSME), 171
men reported having sex with both
men and women (MSMW).
HIV prevalence for MSME was 43.0 %
and 12.3 % for MSMW. Overall,
HIV prevalence for MSM at the
cohort enrollment was 24.5%
which was a big contrast to that
of female sex workers-31.5%
and high risk heterosexual men-
12.4%.
Overall 23.5% of MSM reported
previous HIV testing of whom
five MSME disclosed having
tested HIV positive. About
37% of MSM who reported anal
Sign post to a health facility showing
timings and services offered

7
HERAF to Promote the Right to Health
for Sexual Minorities in Kenya
By Beatrice Gachambi, HERAF
HEALTH RIGHTS TODAY [ ] SPECIAL EDITION
Through this project, HERAF
intends to equip health workers
with knowledge and information
on the fundamental rights of the
sexual minorities, especially with
regards to accessing information and
HIV prevention, care and treatment.
They will also be encouraged to
share this information with their
colleagues so as to identify and
address instances of stigma and
discrimination at the health facility
level among themselves.
It is hoped that the project will
create public awareness on
the rights of sexual minorities
and enable health workers to
recognize and respect the rights
of sexual minorities. In the long
run, the project hopes to reduce
vulnerability to HIV and improve
access to health care services for sexual
minorities in Kenya.
HHERAF is implementing a project
entitled “promoting the fundamental
right to health for sexual minorities in
Kenya.” This project commenced in
July 2009.
The purpose of the project
is to promote the rights to
health for sexual minorities
in Kenya. To achieve this,
the project will create
awareness of their rights to
health among health care
providers and policy makers.
The project anticipates that,
through improved awareness
and information, the health
providers will become key in
promoting the rights of the sexual
minorities.
Members discussing HERAF’s strategic
direction for 2009-2013
Health and Human Rights Challenges for Sexual Minorities
to retain foreign laws, which have
since been discarded by the source
country?
The Human Rights imperative
also compels us to reach to the
same conclusion - that we need
to decriminalize consensual
adult same-sex sexuality. This
is because criminalization goes
against the rights of same-sex
practicing people and also because
Kenya is signatory to international
conventions that guarantee human
rights protections for all her
citizens. Yet, it’s the intersection
between human rights and health
that challenges Kenya’s desire to
institutionalize discrimination,
through criminalization, with the
grim picture of the impact of such,
implied in selective provision of
health services.
There has been talk of the country
developing a policy directive on
how to give HIV information
and preventive commodities to
the MSM in particular, without
having to repeal sections of the
law, that criminalize consensual
adult same-sex sexual activity.
Those who urge for this
intervention appreciate the grim
health conditions faced by sexual
minorities but are unwilling to
let go of their homophobia and
transphobia. The LGBTI community
in Kenya however would like
to reiterate their often stated
position; that the state should stop
institutionalizing the discrimination
of sexual minorities by criminalizing
consensual adult same-sex sexuality,
and that they should offer legal
protection to all sexual minorities
including the transgender and
intersex, so that they can access all
services including health services
without fear of stigmatization,
discrimination or denial of the same.

TThe report on the effects of 2007
post election violence on health
workers and the preparedness
of the Health care system in
Design and Printing:
Hewan Graphics P.O. Box 101055 - 00101, Nairobi. Kenya.
Tel: 0721 212232, 020 2402863, 0735 532274
Email: hewangraphics@gmail.com
HERAF’s Updates
Upcoming Events
Contacts: The Executive Director,
Health Rights Advocacy Forum,
Muthangari Road, Off Gitanga Road,
P.O. Box 100667 - 00101, Nairobi, Kenya.
Tel: +254 - 020 - 3861482/3
Fax: +254 - 020 - 3861483
Email: info@heraf.or.ke
Website: www.heraf.or.ke
 Human resources for health
strategic plan 2007/08 –
2009/10 consultative forum
will be held in the month of
September, tentatively 18th
September, 2009.
 HERAF will also hold a
workshop on stigma and
Kenya conducted by HERAF has
been printed and the process of
dissemination on the same has
already started.
HERAF also launched her strategic
plan 2009 – 2013 during HERAF’s
AGM which was held on 30th July
2009 at HERAF offices.
discrimination of the sexual
minorities in the health
facilities during the month
of September, tentatively
23rd and 24th September
2009.
 HERAF will conduct
trainings for the health
committees in Kwale,
Mbeere and Nyeri North
Districts on their roles and
responsibilities in line with
the community strategy
during the month of
October.
 HERAF will participate in
the 2nd regional changing
faces, changing spaces
conference to be held on
27th to 30th of September
2009 in Nairobi.
Lisena DeSantis farewell
party
HERAF staff leading workshop
participants in a ice breaking session
Section of members who attended
launch of HERAF’Strategic Plan
Pictorial
HERAF staff pose for a photo with
International Visitors

Health and Human Rights Challenges for Sexual Minorities in Kenya

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