Kenyan MPs want laws on same-sex relations enforced. The Interior Ministry says a court ruling bars it.

A committee of Kenya's National Assembly has told the government to "strictly enforce" the colonial-era Penal Code sections used to criminalize same-sex relations between men. Kenya's Interior Ministry told the same committee it cannot do so, because it reads a 2023 Supreme Court ruling as having struck those sections down. The court record does not settle the matter the way either side describes it. The Public Petitions Committee's report has been tabled but not yet debated or adopted, so for now it is a recommendation, not law or a binding order.

The report, reported on Nov. 10 by the Daily Nation and by The Standard, answers a petition filed in February 2024. It sets up a dispute between Parliament, the executive and the courts over laws that remain on the books but are rarely used.

What the committee recommends#

The committee, chaired by Runyenjes MP Karemba Muchangi, backed the main request of Nyali MP Mohamed Ali. "The Committee recommends that the Ministry strictly enforces the law as is," the report says, as quoted by The Standard. The report is dated September 2026.

Ali presented the petition on Feb. 21, 2024, "on behalf of the citizens of Kenya," according to the Nation. The paper says it represented Christian and Muslim religious leaders and organizations, NGOs and individuals. It asked for three things:

• Enforcement of sections 162, 163 and 165 of the Penal Code by the Ministry of Interior and National Administration.
• An inquiry into whether any approved school curriculum carries LGBTQ content.
• Fast-tracking of the Family Protection Bill 2023.

On curriculum, the committee found no approved LGBTQ content. It still recommended that the Kenya Institute of Curriculum Development ensure all curricula "uphold Article 45 (2) of the Constitution." That clause says every adult "has the right to marry a person of the opposite sex." On the bill, the committee said scheduling is a matter for the House Business Committee and the bill's sponsor.

The committee went further than enforcement. It said that "promotion of activities that are contrary to Article 45 (2) therefore ought to be disallowed." It also said anyone registering an association "ought to clearly demonstrate" that its activities do not breach that clause. "They can associate on any other matter thereof," the report says.

What the three Penal Code sections say#

The sections date from the Penal Code of 1930, which Kenya kept at independence. According to the texts quoted by The Standard and the Human Dignity Trust, a UK-based legal charity:

Section 162 also covers acts with animals. Section 165 applies only to men. The Human Dignity Trust says only men are criminalized under these laws.

The dispute over what the Supreme Court decided#

The core disagreement is about one judgment. On Feb. 24, 2023, the Supreme Court ruled that the NGO Coordination Board acted unconstitutionally when it refused to register the National Gay and Lesbian Human Rights Commission (NGLHRC). The Board had cited the Penal Code. The court held that the rights to freedom of association and freedom from discrimination apply to all Kenyans regardless of sexual orientation, the Nation reported. On Sept. 12, 2023, the court rejected a bid by Homa Bay Town MP Peter Kaluma to overturn that ruling.

The Interior Ministry reads that judgment broadly. "The Supreme Court declared these sections discriminatory and hence unconstitutional," it said in its memorandum to the committee, as quoted by the Nation. It said the judgment "has not been reviewed or set aside" and is "binding upon the government." "The Ministry of Interior and National Administration cannot therefore enforce the sections declared unconstitutional," the memorandum said.

The committee reads it narrowly. It said the sections "were not rendered unconstitutional but rather, they could not be used to limit freedom of association." It added that the ruling "does not and cannot impeach either Article 45 (2) of the Constitution nor sections 162, 163 and 165 of the Penal Code."

The wider court record does not show the Supreme Court striking the sections down, and the question is still before the courts. In a separate case, the High Court held on May 24, 2019, that sections 162 and 165 do not violate the Constitution, according to the Human Dignity Trust and Human Rights Watch. That ruling is under appeal. The Court of Appeal heard preliminary proceedings on Nov. 10, 2025. It sent the case to a five-judge bench for a full-day hearing, according to KELIN, a health-rights group that is a party to it. The Human Dignity Trust's profile, last updated Sept. 30, 2026, says the hearing was adjourned again in February 2026 and was expected in May. This article found no report of a judgment.

The Nation also flagged an inconsistency in the report. The committee says the petition came before the Supreme Court ruling. But annexes to the report show it was presented on Feb. 21, 2024, a year after the judgment.

How often the laws are used#

Prosecutions under these sections are rare, by the available accounts. In 2019, Human Rights Watch said it knew of only two prosecutions of four people under section 162 in the previous 10 years. The Human Dignity Trust says reports suggest police more often use laws on "loitering," "solicitation" and "impersonation" to arrest LGBT people. It cites U.S. State Department reporting that statistics given to the National Assembly in March 2014 showed 595 unnatural-offense cases opened since 2010.

No official figures exist on the number of LGBTQ people in Kenya. Ali told the committee as much, adding that the behavior is "largely concealed," The Standard reported.

Strict enforcement would therefore depart from recent practice as these accounts describe it. The ministry's memorandum indicates it does not believe it can enforce the sections while the 2023 judgment stands.

The case for enforcement#

The petition's backers frame the issue as one of law and family. Ali told the committee he was concerned that LGBTQ culture was foreign and aimed at enticing people into what he considered unnatural practices, The Standard reported. He argued that the Supreme Court "overstretched its mandate" in its 2023 equality reasoning, according to the Nation. He also listed what he described as signs of LGBTQ identity, including rainbow colors and certain mannerisms.

The committee rested its case on Article 45. "LGBTQ agenda in so far as the family unit is concerned, could therefore not be allowed to infiltrate the country's education curriculum," it said. The family "learners ought to be taught is headed by parents, who could only be persons of the opposite sex."

The Ministry of Education, for its part, said sexuality education under the Competency Based Curriculum promotes "abstinence, self-respect, and protection from risky behaviors." It said "the instructional materials are not expected to promote LGBTQ in any way."

The case against#

Rights groups asked the committee to throw the petition out. Amnesty International Kenya called the petition frivolous and said it "seeks to undermine the authority of the Supreme Court." The Coalition for Grassroots Human Rights Defenders Kenya said it was "an attempt to undermine rights and fundamental freedoms contained in the Constitution."

The Gay and Lesbian Coalition of Kenya (GALCK+) said the petition entrenches a culture of discrimination and abuse. "Sexual orientation and gender identity are inherent aspects of a person's identity that are not chosen and cannot be changed by force, law, or persuasion," it argued. The Human is My Identity Alliance asked the committee to dismiss the petition and to add gender identity as a basis for hate speech in the proposed NCIC Bill 2023.

KELIN argues in the appeal that criminalization harms public health. It says the laws push men who have sex with men away from HIV prevention and treatment. It also says Ministry of Health policy documents themselves recognize this effect.

Public opinion: low acceptance, rising slowly#

Kenyan public opinion has long opposed acceptance of homosexuality, though the share has grown. In a 2019 survey across 34 countries, the Pew Research Center found that 14% of Kenyans said homosexuality should be accepted by society. In 2002, the figure was 1%. Elsewhere in Africa, results varied widely: 7% in Nigeria and 54% in South Africa, up 21 points since 2002. The 34-country median was 52%. These are 2019 figures, and no more recent comparable survey was found.

• 2002
• 2019

0%

20%

40%

60%

Kenya2002: 1%2019: 14%

Nigeria2002: –2019: 7%

South Africa2002: 33%2019: 54%

KenyaNigeriaSouth Africa

Source: Pew Research Center, Spring 2019 Global Attitudes Survey

Show the numbers

Country	2002	2019
Kenya	1%	14%
Nigeria	–	7%
South Africa	33%	54%

How Kenya fits a regional pattern#

Kenya's debate echoes others across Africa. In Ghana, Parliament's Speaker has said an anti-LGBTQ+ bill will pass after a second consideration. He has also vowed to name anyone who obstructs it. Kenya's own Family Protection Bill 2023, sponsored by Kaluma, would raise penalties further. The Human Dignity Trust says it proposes a minimum 10-year sentence for consensual same-sex acts and the death penalty for "aggravated homosexuality."

Disputes over sexuality education and gender law have also reached lawmakers and courts elsewhere, from Paraguay's Senate to India's Supreme Court.

The House vote and the court ruling still to come#

Two decisions will shape what this report means. The first is whether the National Assembly debates and adopts it. That would turn the recommendation into a House resolution, though still not a court order. The second is the Court of Appeal's ruling on sections 162 and 165. A ruling upholding them would strengthen the committee's position. A ruling striking them down would make the enforcement call moot.

Until then, the government department that would enforce the law has told Parliament, in writing, that it believes it cannot.

Research note#

This article draws on the committee report as quoted by the Daily Nation and The Standard; the report itself was not available online. Court history comes from the Human Dignity Trust, Human Rights Watch and KELIN. Public-opinion figures come from Pew Research Center's 2019 survey, the most recent comparable data found. The Supreme Court's 2023 judgment was not opened directly for this article. Federal campaign-finance and dataset tools on this site cover only the United States and do not apply to this story.

Differing perspectives

Should Kenya's government strictly enforce Penal Code sections 162, 163 and 165 on same-sex relations?

Each position is summarized as its supporters make it, with equal weight and in alphabetical order. A summary is not an endorsement; the evidence for each is weighed in the story above.

• Enforce the sections as written

  Who holds it: Nyali MP Mohamed Ali and the religious groups behind his petition; the National Assembly Public Petitions Committee

  The sections remain valid law, and the 2023 Supreme Court ruling only protected the right to register an association. Article 45(2) of the Constitution limits marriage to a man and a woman, so activities that promote the opposite should not be allowed. The Interior Ministry should strictly enforce the law as it stands, and school curricula should uphold Article 45(2).

  In their words: The Standard (quoting the committee report) ↗

• Follow the Supreme Court's 2023 judgment

  Who holds it: Ministry of Interior and National Administration, in its memorandum to the committee

  The ministry reads the 2023 Supreme Court judgment as having found the sections discriminatory and unconstitutional. That judgment has not been reviewed or set aside and binds the government. The ministry therefore says it cannot enforce provisions it considers declared unconstitutional, whatever Parliament's committee recommends.

  In their words: Daily Nation (quoting the Interior Ministry memorandum) ↗

• Strike the sections down on appeal

  Who holds it: KELIN, a health-rights group that is a party to the Court of Appeal case, with allied rights groups

  Criminalizing consensual same-sex conduct between adults violates the constitutional right to the highest attainable standard of health. The laws create fear, stigma and discrimination that push men who have sex with men away from HIV prevention, treatment and care, an effect the Ministry of Health's own policy documents recognize. The Court of Appeal should overturn the 2019 ruling that upheld sections 162 and 165.

  In their words: KELIN ↗

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