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Mombasa court declares anal tests for homosexuals legal

The High Court in Mombasa has dismissed a petition by two suspected homosexuals challenging the constitutionality of undergoing an anal examination as proof of being gay.

High court judge Justice Anyara Emukule dismissed the petition on grounds that it had no merit since the petitioners had consented to the test

“The medical examination of the petitioners and the taking of samples was in accord with the applicable law, I find no violation of the petitioners’ rights as contended in the petition, it therefore has no merit and dismissed,” Justice Emukule ruled.

“The record of proceedings is instructive that the petitioners did not object nor did they protest the test. It is clear to me that the petitioners willingly and voluntarily consented the medical examination,” he added

Justice Emukule said the petitioners were ably presented by their lawyers and if they had any difficulty of consent they were at liberty to stay all the proceedings and appeal against such orders.

Mr Caleb Omar Idris and Mr George Maina Njeri had applied to the court to dismiss evidence the prosecution obtained from them claiming it was acquired illegally.

VIOLATION OF HUMAN RIGHTS

The two applied in a petition that evidence were obtained against the principle of self-incrimination by the accused persons as provided for under the constitution and the law of evidence.

Through their lawyer, Ligunya Sande, the two argued that they were forced to have anal medical examination on consequential HIV and Hepatitis B testing, which they claimed subjected them to torture, cruel, inhuman and degrading treatment and or punishment.

The lawyer had urged Justice Emukule to consider the petition with regard to international, regional and domestic human right laws as well as the provisions of the Kenyan constitution on medical examination conducted without one’s permission.

The petitioners had urged the court to declare the manner in which the forceful and coercive medical examination was conducted unconstitutional and throw the evidence out of their case.

They further argued that such procedures and tests violate human right to privacy whether they are done to help police.