Mombasa, KENYA: A Mombasa high court on Thursday ruled that anal test among gay suspect is constitutional and it is the only way to get evidence to be used against suspects.
Two men alleged to be gay had filed a petition in high court seeking court to declare the manner in which the evidence acquired to prove them gay, unconstitutional.
In their petition, they said that they were forced to have anal examination, on consequential HIV testing and hepatitis B testing which amounts to being subjected to torture,cruel,inhuman and degrading treatment.
In his judgement,judge Anyara Emukule said the accused were represented by a lawyer and they were at liberty to have appealed the court order subjected them for anal medical test.
“The only way to get evidence in sexual offence is through medical test,” Justice Emukule said.
He also said that by applicants filing forms at the hospital shows they were willing to go through test.
The two had sued, Principal Magistrate Ukunda law courts, DCIO msambweni, director of public prosecution and the cabinet secretary ministry of helth, alleging that the Magistrate aided the DCIO in his criminal investigations, which they say constitute to an outright act of inhuman treatment.
They also wanted court to grant damages for the physical and psychological suffering they were alleged to have been subjected to.
Justice Emukule state that it is unlawfully to give damages at this stage and declared that no party will pay damages.
The two were arrested at a public bar in Ukunda on February, 2015 by eight police officers including the OCS , after they explained to them they were investigating issues related to gay liaisons and in particular production of pornographic movies and were informed that the suspects were suspected gay male adults.
According to Lawyer Eric Gitari, this sets a precedent that if you are suspected to be gay in Kenya, you can be forced to anal examination to establish if you had anal sex then be prosecuted to a 14 year jail term.