KWALE, Kenya — Two men alleged by police to be part of an illegal gay pornography ring were charged before a magistrate Tuesday, after undergoing court-ordered anal exams, in the coastal Kenyan county of Kwale.
They were arrested last week after allegedly pornographic photographs were published on a local blog. The Star, one of Kenya’s biggest national newspapers, republished some of the photographs, blurring the men’s faces but further stoking community outcry.
The men were arrested when community members said they identified the two from the photographs. One was being beaten by a mob as police arrested him, according to lawyers representing the two men.
The men were charged Tuesday with “practicing unnatural offenses” and with possessing “for the purpose of public exhibition” 10 CDs with content the prosecution alleges “corrupt[s] morals.” It provided no further details about the CDs — or the 100 photographs the prosecution last week told the court it has uncovered.
The prosecutor also tabled an “alternative count,” which will only be considered by the magistrate if she acquits the two men of unnatural offenses violations. That count alleges that the two men “jointly committed an indecent act with an adult” who is a third party.
Homosexuality is criminalized in Kenya under the unnatural offenses law, a provision that has been on the books since the country was a British colony. Kenyan authorities say they have taken legal action in more than 500 cases of alleged homosexuality since 2010.
The men first appeared in court Friday and were held over the weekend as the prosecution continued its investigation. The two were also ordered to submit to a “medical examination.”
Those words immediately made Eric Gitari, the executive director of the National Gay and Lesbian Human Rights Commission, Kenya (NGLHRC), suspicious.
“If you say â€˜medical treatment,’ fine, but â€˜medial exam’ is very open to abuse,” he told BuzzFeed News from his office in Nairobi. “It’s against their right not to table evidence against themselves; it’s a breach of their privacy; and it’s against their right to dignity.”
Though there is no scientific evidence to support their utility, anal exams persist in many countries where homosexuality is criminalized.
Pepela Mate, a lawyer with the Kenyan Human Rights Commission (KHRC) who is assisting on the case, told BuzzFeed News before the hearing, “The medical exam is more like a pretext. They [the prosecution] wanted the anal swabs because they were not charged on Friday, and now they may have grounds for charging [the pair with] â€˜committing unnatural acts.'”
The man whose lawyers say he was beaten ahead of his arrest appeared in court wearing a large white bandage, visible beneath a partially opened button-down shirt, on his left shoulder and upper chest.
He had tears in his eyes during most of the 30-minute hearing, and his arms and fingers shook forcefully when he did not hold the ledge of the defendants’ box where he stood.
“Looking at my clients, they look unwell,” Mate told the court. He requested their release on bail in part so that they could seek any necessary medical attention.
Mate won his bail request, but neither man could find anyone to put up the roughly $2,250 in collateral set by the bail conditions. The two were then returned to prison.
The prosecution said in court Tuesday it had completed its investigation, and it named five witnesses, all police officers, who will testify as the case proceeds. Police have told local media that the accused are part of a gay pornography “ring,” led by Europeans, that has been operating for some time in the area and that exploits minors.
But Magistrate Christine Njagi took a moment at the start of the hearing to chastise the media for false reporting, including an unsubstantiated claim made over the weekend that the two defendants are married.
Standing outside the courthouse, William Oluchina, a program officer at the Kenya Human Rights Commission, said the notion of a gay porn ring exploiting minors is “more like a cover up to have a good reason to arrest them … There is this myth in Kenya that if you’re gay, you will be recruiting children. This story is part of that fear.”
Gitari of the NGLHRC says the local coverage plays up the idea that “gay people are all about sex and lure young children. The perpetuation of that narrative […] is like giving bullets to the anti-gay movement.”
At the same time, Gitari said his organization has had nearly a dozen reports, unrelated to the Kwale case, of exploitation of gay men and youth in Kenya by foreign pornographers.
Oluchina said the accused will continue to look for avenues to pay the bond, even as some law enforcement officials suggested that the two are safer in prison than in their community.
“It’s a Catch-22,” Oluchina acknowledged. “The community was very angry at that particular time, but on the other hand, you’re violating their rights” by keeping them in prison.
The next hearing in the case will be on May 26.