CAT/C/KEN/CO/3

Kenya (CAT 30 May 2022)

The Committee against Torture considered the third periodic report of Kenya1 at its 1897th and 1900th meetings, held on 4 and 5 May 2022, and adopted the present concluding observations at its 1908th meeting, held on 11 May 2022.

Concluding observations on the third periodic report of Kenya

C. Principal subjects of concern and recommendations

Treatment of refugees, asylum seekers, migrants and stateless persons

25. While taking note of the adoption of the Refugees Act (No. 10 of 2021), the Committee is concerned about the provisions of clause 19 (2), which allows for broad exceptions to the principle of non-refoulement on the basis of public morality. The Committee is particularly concerned that lesbian, gay, bisexual, transgender and intersex refugees and asylum seekers could be subjected to refoulement on the de facto basis of their sexual orientation and gender identity. Other issues of concern include the inclusion of prisons, police stations and remand homes in the definition of refugee transit centres; the detention of non-citizens solely for irregular entry into the country; the intention of the State party to close both the Dadaab and Kakuma refugee camps by June 2022, citing alleged security risks, which may result in mass expulsions, involuntary repatriations and the
refoulement of a very large number of Somali and South Sudanese refugees, which may put them at risk of being detained, tortured or killed upon their return to their country of origin (arts. 3 and 11).

Sexual orientation, gender identity and intersexuality

43. The Committee welcomes the adoption of the Registration of Persons (Amendment) Act of 2019, which provides for the legal recognition of intersex persons. It is, however, concerned about:

(a) Sections 162 and 165 of the Penal Code criminalizing same-sex relations, and the High Court ruling in 2019 that declared those provisions to be constitutional;

(b) Reports of lesbian, gay, bisexual, transgender and intersex individuals experiencing harassment, discrimination and violence, including violations perpetrated by law enforcement officers and vigilante groups, and facing barriers to access to justice and remedies;

(c) Cases of non-urgent, irreversible surgical procedures, undertaken without full, free and informed consent, infanticide and abandonment among intersex children (arts. 2 and 16).

44. The State party should:

(a) Amend all relevant laws, including sections 162 and 165 of the Penal Code, to decriminalize consensual sexual relations between adults of the same sex;

(b) Intensify its efforts to eradicate all forms of discrimination, harassment and violence on the basis of sexual orientation and gender identity and provide access to justice and remedies for victims;

(c) Strengthen measures to end the performance of irreversible medical acts, especially surgical operations, on intersex children who are not yet capable of giving their full, free and informed consent, except in cases where such interventions are absolutely necessary for medical reasons. Access to effective remedies for victims of such interventions should also be ensured.