[NOTE: The names of LGBT sex workers have been changed to protect their privacy.]
“Are you a woman or a man?” the police asked Kennedy when he walked into the station with a massive gash on his head. A gay man and a sex worker, Kennedy was fearful of going to the police since same-sex relations and prostitution are both illegal under Kenyan law.
After he was badly beaten by an ex-lover, however, he decided he wanted justice. The police didn’t take his case — or his open wound — very seriously. According to Kennedy, they refused to take his report until he proved he had sex with women. Desperate, he texted a female friend and asked her to pretend to be his girlfriend. It was only after the cops talked to her that they took his report.
“If police have [any reason to believe] you’re gay, you’ll find it rough,” Kennedy said in an interview at a seaside hotel in Mombasa.
Kenya is one of 80 countries that criminalize same-sex relations. Those found to have engaged in homosexual sex, or “unnatural offenses” as the Kenyan penal code describes it, can face life in prison.
Since outing themselves would mean incriminating themselves to the police, many LGBT people in Kenya are hesitant to bring any sort of case to the police. For LGBT people who are also sex workers, the fear is doubled.
“One [of my clients] came to know that I’m a lesbian and he beat me up,” Marion a lesbian sex worker told me. “He had a knife. He stabbed me.”
Marion’s clients are mostly straight men, and she said that some sex workers she knows have outed her to them. She said they did so in order to win the business of her clients.
The vast majority of Kenyans have negative views towards same-sex relationships. A 2013 Pew survey found that 90 percent of people there believe that society should not accept homosexuality.
“[The police] come and take us to the nearby bush or graveyards and force us to sleep with them without condoms. If you refuse, you’re taken to the police station.”
Even though Marion had been assaulted by a client who she regularly had sex with, she did not feel comfortable reporting what happened to the police, because, she said, police harassed and abused her and other sex workers on an almost weekly basis.
“They come and take us to the nearby bush or graveyards and force us to sleep with them without condoms. If you refuse, you’re taken to the police station, so there’s no way out.”
If she told the police she had been stabbed, Marion felt they would indict her for sex work — or simply not pursue the case.
“I was so afraid of them,” Marion said.“There was no way that I could think of going to the police station.”
The vexed relationship is even more problematic because many LGBT people in Subsaharan Africa are blackmailed because of their sexual identities. The issue is compounded for LGBT sex workers because their sexuality is not something they can hide from clients.
One night, a client refused to pay Musa, a gay man and a sex worker. When he insisted on getting paid, the client turned the table on him.
“’Now you’ll pay me for my silence,’” Musa remembers the man saying. “’You should pay me or I’ll tell everyone that you’re a sex worker and you’re gay. Choose one.’”
He didn’t have the 50,000 Kenyan shillings (about $500) that the man asked for and so he readied himself for the consequences.
The man told Musa’s childhood friends and family about his sexuality.
“Those friends decided to part ways with me, so I have no friends now. We were raised like brothers,” he said in a mournful tone.
The sun glitters across the turquoise waves and an odd tourist looks for seashells on the shore. The scene is breathtaking in its beauty, but the sorts of things that Musa, Marion, and Kennedy say have happened in this tourist town casts dark shadows over it all.
“When a person is accused of being gay, [the police] can do anything,” Michael Kioko, a Mombasa-based lawyer who handles cases of LGBT people on a pro bono basis told me.
“Some people call me and say ‘I have not been paid [for sex work],’ or ‘I have been beaten up [because of my sexuality],’ and I tell them you can go to the police and file a report,” he said.
Kioka gives them that advice with a warning, however.
“You might be arrested and charged with unnatural offences,” he tells them, “So they have to choose whether to forego that violation or attempt to report it and be arrested and charged.”
That leaves many LGBT people trapped between a rock and a hard place. Kioka used to work with one of Kenya’s largest LGBT rights’ organization, said the issues don’t just arise when LGBT people go to the police. Some of his clients were stopped by police who accused them of being LGBT based on their appearances.
“Most of cases that I’ve handled arose because of the way a person was talking or dressed,” he said.
According to Kioka, Kenyan police feel they can arrest people simply for being gay even though the Kenyan penal code outlaws gay sex, not the sexuality itself.
“If we know that they are really LGBT, then we go in and arrest them because it’s not allowed in Kenya.”
“The police, of course, believe that if you are gay, that’s a crime. They do not differentiate between the orientation and the act which is a problem.”
Joseph Ole Kina, the head of the police in Kilifi, a county just outside of Mombasa, provided proof to that claim.
“If we know that they are really LGBT, then we go in and arrest them because it’s not allowed in Kenya,” he said in a phone interview.
The claim made it seem that he believes authorities have the power to arrest people simply for being LGBT.
Still, he said, it is “very rare” that police do so, not least because of the personal nature of sexuality.
Ole Kina further said that police would investigate cases of blackmail brought by LGBT people without indicting them for having same-sex relations.
“We will not [file a case against someone if he admits to being gay],” he said from Kilifi. “We shall follow the blackmail issue. We shall investigate the blackmail issue [and ask the accused] why are you blackmailing this person? We have never taken anybody to court just because somebody is gay.”
Kioka, the lawyer agreed that is rare for LGBT people to face trials for same-sex relations in Kenya, he said that more and more such cases are arising.
Two gay men in a Kilifi County town about an hour’s drive from Mombasa were charged under the “unnatural offenses” provision of the Kenyan penal code earlier this year. They were also charged with producing and trafficking pornography although Kioka, who represented them in the early stages of their trial, said that the police have yet to show evidence of that.
The media attention for that case has only heightened distrust between police and the LGBT community, Kioka said.
“I think it’s getting worse,” he said. “I can’t say whether it’s because of exposure and [LGBT issues] being discussed more or whether its religious people getting impatient [and engaging in vigilante justice]. Of course there are many factors, but it is getting worse.”