On February 15, 2015, two men, seated at a public Bar in Kwale County, were approached and arrested by 8 police officers including the Officer Commanding the Diani Police Station.
The police officers explained that they were arresting the men on suspicion of being gay and in the production of pornographic movies. The men were taken to a police station where they were subjected to interrogation and detained for a period of four days. It was while under police custody that a police officer, Salim Yunis, first attempted to forcefully have the two men examined to prove they were practicing 'unnatural sex' as envisaged under Section 162 of the penal code to which they refused to give their consent.
The police officer thereafter arraigned the two men at Kwale Law Courts charging them with:
While in detention, the police also raided the house of one of the two men and found a Queer As Folk DVD series (used as evidence for the obscene material charge). The police then made an application before the presiding magistrate, Hon. Mrs Njagi, to have the two men subjected to a medical examination to prove that they had anal sex with each other.
- practicing an unnatural sex contrary to Section 162(a) as read with Section 162(c) of the penal code
- indecent act with an adult contrary to Section II (a) of the Sexual Offences Act and,
- trafficking in obscene materials contrary to Section 181 (1)(a) of the penal code.
The Hon. Mrs Njagi ordered that a medical examination be conducted on the two men who were referred to Makadara General hospital while under police custody and subjected to an anal exam, HIV testing and other blood related tests.
While at the hospital, the two men were forced to sign consent forms in adherence to the hospital's policy for the exams to be undertaken. They were forced to strip naked, lay facing up, lift their legs in the air and cough as medical personnel inserted fingers and metallic objects up their rectum.
The two men were subjected to this inhumane, torturous and degrading treatment under the watch of hospital personnel and the police. They were later charged for committing unnatural offences and detained for months awaiting bail terms worth Kenya Shillings 500,000 per accused person (USD 5,000).
As a community and defenders of human rights, the National Gay and Lesbian Human Rights Commission (NGLHRC) finds the actions and conditions that the two men went through:
- constitute cruel, inhumane and degrading treatment forbidden under Article 25 of the Constitution of Kenya
- amount to torture under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (which has been ratified by Kenya) and,
- are a breach of medical ethics, in Kenya and internationally, while having no probative evidentiary value in criminal prosecutions