Lesbian and homosexual relationships, "private or not, formal or not, would be in violation of the tenor and spirit of the constitution," according to the ruling read by Justice Roselyn Aburili. The Kenyan constitution defines both marriage and cohabitation as the voluntary union of a man and woman, she said.

"It is difficult to agree with the petitioners’ arguments that we can safely nullify the impugned provisions, whose effect would be to open the door for same-sex unions" without further violating the Kenyan constitution, Aburili said.

Kenya is one of 36 African countries that has criminalized homosexuality, according to Open For Business, a coalition of global companies, which argued that inclusive and diverse societies are better for business and essential for economic growth.

"It doesn’t affect just the LGBT community in Kenya, it affects all Kenyans," Drew Keller, global program director at Open For Business, said by phone. "It is documented that the LGBT community are kept out of the informal and informal work force, which diminishes Kenya’s national productivity."

During a visit to Kenya in July 2015, former U.S. President Barack Obama, whose father was born there, urged African nations to abandon laws criminalizing homosexuality, clashing with his host President Uhuru Kenyatta, who called gay rights a "non-issue" for Kenyans.

(Published by Bloomberg, 24 may 2019)
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