Eric Gitari LL.M. ’18 on litigating a landmark LGBT case in Kenya: ‘It has given people confidence to see what’s possible’

This past February, only a few weeks into spring term, Eric Mawira Gitari LL.M. ’18 flew home to his native Kenya. The Court of Appeal at Mombasa was hearing a landmark case that Gitari’s NGO, the National Gay and Lesbian Human Rights Commission, had brought on behalf of two young men arrested in 2015 on suspicion of engaging in homosexual activities —a felony in Kenya — and distributing pornographic material. In pre-trial proceedings, a magistrate ordered them to undergo HIV tests and to submit to anal examinations — a practice, common in eight African countries, that violates several international treaties and covenants and has been condemned as amounting to torture or ill-treatment by the UN special rapporteur on torture and cruel, inhuman or degrading treatment.

In 2016, challenging these methods of collecting evidence, Gitari and his colleagues argued, unsuccessfully, that their clients’ rights to privacy and protection from self-incrimination had been violated. “The [trial court] said that as long as homosexual sex is illegal, there is no other way to prove that there was anal penetration than to subject that person to a forced examination,” he explains. “This case [set] a dangerous precedent because there was a very arbitrary application of the criminal law, not just by the police but also by the magistrate and the government doctors.”

In March 2018, in a decision covered by news media around the world, the Court of Appeal overturned the trial court’s decision. “My biggest concern was for the two young men; they will live with this for the rest of their lives,” Gitari observes. “But it was progress nonetheless. It means that no other magistrate, no police officer, no government hospital can engage in anal testing to prove that someone is a homosexual.  The practice has no value at all, as the court has said, in proving any crime or offense related to homosexuality.”  The government is in the process of withdrawing the charges against the two men.

“This case has given people confidence, to see what’s possible,” he notes. Equally important, “we have a local precedent now, and it’s being supported. The court was very deliberate in using the African Charter on Human and Peoples’ Rights to speak about it. In this context, people are so keen to use knowledge that is constructed by institutions within the African continent, to push against all these injustices against homosexuals, to create litigation and to claim justice.”

In telling his story, Gitari admits that his path from law student to litigating a landmark case was not an especially smooth or direct one. He grew up in Meru, on the slopes of Mount Kenya, listening to his grandfather’s stories of fighting as a Mau Mau guerrilla in Kenya’s war for independence from British colonial rule. “He taught me a lesson when I was very young about how land was the instrument they were using to negotiate for their dignity and sovereignty,” Gitari recalls. “I could not understand all those concepts then but I was very impressed by his understanding of being treated differently under the law. I think that that was my introduction to the possibility of formal legal systems creating injustices.”

After completing his LL.B. at the University of Nairobi, Gitari worked in a law firm for eight months. “I was not fulfilled,” he recalls, so for the next two years, he hitchhiked around eastern Africa, staying with friends or sleeping on the streets in different cities. He published occasional entries from his travel journal in a local newspaper and served as a volunteer teacher at a juvenile prison. The post-election violence that erupted in Kenya in 2007 and 2008 “really shook me out of my long months of seeking myself and seeking clarity,” he adds. Gitari dedicated himself to providing legal aid to women who had experienced sexual and gender-based violence in Nairobi’s Kibera slums, and then to setting up an LGBTIQ program at the Kenyan Human Rights Commission, an NGO. The Commission conducted a nationwide survey —the first of its kind in Kenya — to understand how LGBTIQ people live. Its 2010 report, “The Outlawed Among Us,” was submitted to the United Nations and the African Commission on Human and Peoples’ Rights.

Concerned by the flow of LGBTIQ refugees from Uganda into Kenya, and little sensitivity to LGBTIQ issues in existing refugee-processing systems, Gitari began working with HIAS, a global Jewish nonprofit that protects refugees. Then, in 2012, “there was a wave across Africa”— in Uganda, Nigeria, Chad, Zambia, Cameroon, and Gambia — of initiating or strengthening laws against homosexuality and gay marriage. “People were saying that homosexuality was a Western concept, that it’s un-African to be homosexual because it goes against morals and culture,” he explains. “These are countries with arbitrary governments and institutional corruption; emerging economies where young people do not have jobs, health care is collapsing, and hunger crises are recurrent —and what are the political leaders doing? They are distracting attention from pressing socio-economic frustrations and diverting it onto homosexuals, for scapegoating and to gain political power in international cultural sovereignty wars.”

As politicians in Kenya joined the fray, Gitari and other activists founded the National Gay and Lesbian Human Rights Commission to provide legal aid and conduct impact litigation. “There are a lot of cases that we’re not able to bring because the people who are affected don’t want to be outed by the justice system,” he observes. “It becomes more complicated when our clients are entrapped or faced with blackmail or extortion. They go to seek justice, but they end up being the ones who are investigated, because the overtures that led to the blackmail are a crime.”

“When people ask me ‘What do you see as the ideal?’, I always say that a reformed legal system would be a good place to start,” he concludes. It’s an ideal that Gitari will continue to pursue: Among other efforts, his NGO is working to strike down Kenya’s colonial-era laws against homosexuality.

During his LL.M. year at HLS, Gitari immersed himself in studying “birthing constitutions,” jurisprudence and legal reasoning, the First Amendment, human rights, and how protests influenced the American civil rights movement. He also found solace in the Harvard Poetry Club — “people recite their poems and you feel an intimacy; it’s very healing,” he explains.

After graduation, Gitari will undertake a summer academic fellowship, to research and write about the transformation of his country’s constitution. He would also like to teach at one of Kenya’s law schools, but his dream is to work across Africa, creating litigation plans, advising governments on their non-discrimination policies, contributing to constitutional reform, and helping to draft legislation. “There are so many democratic changes going forward on the African continent right now; we need to make sure that sexual orientation and gender identity are included in the debate,” he adds. “At least the conversation should be heard.”