Identity
Ask Mbaru—Gay, Lesbian And Law Questions Answered Q: My partner of three years has been abusing me physically and insulting me some times. Last time he beat and assaulted me to the point I had to go to the hospital. I was not able to tell the doctor the truth. Is there any help? James, Nairobi. Dear James, you must first recognize that this is a crime taking place against you and nobody has the right to assault or abuse you, your partner, parent, relative or a police officer. A physical abuse not only injures your body but also creates psychological and emotional turmoil and must be stopped. Under the law, any person who commits an assault occasioning actual bodily harm is guilty of a crime and is liable to imprisonment for five years. This crime must however be reported to the police immediately or within 6 months of the offence being committed. Noting that your partner has been assaulting you for a long period of time without telling the doctor the cause/es of your injuries, it is important to corporate with the police and report the actual details of the crime, the fact that this is your partner notwithstanding. Why is it important to take this action? If an offence is not reported an acted upon, it may result in more grievous harm and end up in death. Death does not choose if the perpetrator is your partner or any other criminal. You must take the first step to prevent possible grievous harm and or death. Also seek help as the psychological trauma this has caused you may have long lasting effects to your relationship, which may end due to pressing charges against your partner or may affect your future relationship where you become paranoid or even violent as well. Seek psychosocial support from a professional as the criminal case is ongoing. Also seek therapy as the case will be ongoing, this may rekindle memories of the pain that you have gone through, crimes committed against you by a loved one may cause trauma and giving evidence in court against a person you have intimately related with is disturbing as this will result in incarceration or a fine. Note: It is the duty of the state to protect its citizens from wrongs committed against them. To do so the state has developed criminal law as that branch of the law that deals with wrongs against individuals which the state has outlawed and which are punishable by the state. Criminal law therefore comes to the aid of individuals who have been wronged by others. It is the state’s duty to prosecute and ensure that those who commit crimes are charged (or accused) in court and punished if found guilty. A crime, also known as an offence, is an unlawful act or omission which is against the law of the state. It is an offence which even if targeted at an individual is an offence against the state as it is against the state’s laws. Generally crimes are punishable by fine or imprisonment. Q: Can someone be arrested if they are known to be gay or when one says he is? I am afraid of the police knowing since they may come after me. George, Bungoma.
‘Under the Kenyan law there is no offence against sexual orientation and or gender identity. You can shout from the roof tops and mountains about being gay’ Monica Mbaru
Dear George, under the Kenyan law there is no offence against sexual orientation and or gender identity. Your identity is inalienable and is protected under the constitution which has an emphatic preamble protecting the well-being of the individual. You can shout from the roof tops and mountains about your sexual orientation [being gay] or identity yourself as such, there is not offence committed. However, due to ignorance of the law, by even law enforcement agent like the police, they have been unable to separate a persons’ identity from a criminal as defined by the law. Unless you are caught committing an offence defined by the law as ‘sodomy’ or ‘creating a breach of peace’ or ‘causing disturbance in a manner likely to cause a breach of the peace’ then under the law you cannot be arrested. Also, many police officers and some members of the public, seeking to be ‘moralists’ may have a problem with your identifying as gay and cause harm to you or cause the police to arrest you. However, upon arrest you must ask to be told what offence you have committed as this is now your right to know before you are kept in custody. Be also aware that once the police or some members of the public are aware of your orientation, they are likely to blackmail you and or extort money from you threatening to arrest you or cause you to be arrested. However if you are already aware of your rights, you will assert t them to prevent this criminal behavior being committed against you. Note: Police officers are authorized to arrest a person who: § Commits a serious offence in their presence; § Obstructs them during their work; § Tries to escape from custody; Page 20