Ken Macharia: What do gay people in Kenya face and what does the Government say?

A gay rugby player who has lived in the UK for a decade is fighting deportation to Kenya over fears he will be persecuted because of his sexuality.

Ken Macharia is calling on the Home Office to end his “limbo” and rule on his asylum case, which has been going on for three years.

Here the Press Association takes a look at gay rights in the nation where the 39-year-old was born and what the Government thinks of the situation.

Ken Macharia
Ken Macharia applied for asylum three years ago (Bristol Bisons RFC/PA)

– What’s the law in Kenya?

While identifying as LGBTQ is not banned, the nation maintains some laws from when it was under British colonial rule including the so-called sodomy offence.

Section 162 of its penal code criminalises “carnal knowledge of any person against the order of nature”, which is used to ban private acts of gay sex.

The punishment is up to 14 years’ imprisonment.

Section 165 also targets public acts of “gross indecency” between two men and carries up to five years’ jail-time.

This can include affectionate acts such as kissing or holding hands.

– Are there other forms of persecution?

The law does not present the full picture – there is also a threat of violence.

A Kenya National Commission on Human Rights report in 2012 warned LGBTQ people suffer “gross discrimination and stigma”.

They can be victims of “physical harassment” and there have also been “cases of assault by mob justice” when “police often fail to come to their rescue”, the report adds.

Officers have also been accused of attacking and blackmailing LGBTQ people, as well as subjecting them to degrading treatment.

– What does the UK say?

The Foreign Office’s advice to gay travellers highlights the risk in Kenya: “Homosexual activity is illegal. Public displays of homosexuality like holding hands or kissing in public places could lead to arrest and imprisonment.”

While accepting the problem, the UK requires Kenyans to demonstrate they “face a real risk of persecution” to be granted refuge.

Home Office guidance on asylum cases says it is unclear how many convictions there have been for same-sex sexual activity.

The department defended its “proud record” of granting asylum to those fleeing persecution because of their sexuality.

“All available evidence is carefully and sensitively considered in light of published country information,” a spokeswoman added.

“All decisions on claims based on sexual orientation are reviewed by a second experienced caseworker.”

– Does the UK accept gay Kenyans’ asylum claims?

Home Office statistics show that of 31 Kenyans to seek asylum in Britain on the grounds of sexual orientation during a period of less than two years, only six were successful.

A total of 23 were refused, while two remained works in progress during the July 2015 to April 2017 period.

This means a success rate of 21% for sexual orientation claims by Kenyans.

This compares to 71% for Saudi Arabians, 55% for Ugandans and 19% for Nigerians.

– What do lawyers and campaigners say?

Asylum claims can be rejected if officials are not convinced of the applicant’s sexuality or find they do not have a well-founded fear of persecution.

The burden for proof should be set as “reasonably likely”, a low bar because of what is potentially at stake – an asylum seeker’s life or liberty.

But lawyers and campaigners say this is often set too high in practice, with a “culture of disbelief” pervading among caseworkers.

Ken Macharia
Ken with teammates (PA/Ken Macharia)

Leila Zadeh, the executive director at the UK Lesbian and Gay Immigration Group charity, said “far too much evidence” is requested, including some which is “preposterous”.

Claimants have been asked for utility bills showing their names alongside their former partners in the countries they have fled, she said.

Nath Gbikpi, a solicitor who has worked on LGBTQ asylum cases at Wesley Gryk Solicitors, said: “It’s very clear to me that a lot of refusals would be granted if the correct standard of proof was applied.

“There clearly is a culture of suspicion or a culture of disbelief, that’s definitely there. And I feel it has become more prominent.”

Both also cited a problem of stereotyping, with claimants from across the world expected to produce similar histories, such as their process of coming out.

“One stereotype I gave an example of is that everybody goes through some kind of coming out journey of self acceptance but there’s millions of LGBTQI people around and it’s ridiculous to think everybody has the same trajectory for their sexual orientation,” Ms Zadeh said.

Stop the deportation of Ken Macharia – Sign the Petition! https://t.co/dbxLvgFB6e via @UKChange

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– What’s the future for gay rights in Kenya?

Campaigners have been fighting to get the laws that criminalise gay acts repealed.

But they were left frustrated when judges at Kenya’s high court delayed a decision for several months until the end of May.

Even if the landmark ruling comes back in favour of the LGBTQ community, this does not mean their mission for equality is over, with public attitudes to challenge.

A 2016 survey suggested 46% of Kenyans agreed being gay should be a crime.

The research by the International Lesbian, Gay, Bisexual, Trans and Intersex Association also said 55% would feel uncomfortable if their neighbour was homosexual.

Ms Zadeh said: “If the law is repealed it doesn’t stop all of the harassment and bribery and dangers that face people overnight, it doesn’t suddenly change the situation.

“That fear of persecution isn’t suddenly going to stop because of a court ruling.”

– What’s next for Mr Macharia?

Continue to wait.

At his bail hearing, the Home Office was told to consider how Mr Macharia’s raised profile would affect his well-being in Kenya and lawyers believe this may be what saves him from being deported.

Alex Wright, a caseworker at the Immigration Advice Service, said: “I would have thought the prominence this case has received would indicate that potentially there would be a higher risk of mob violence upon return and I hope they would see some sense.”

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