TUKO.co.ke journalist Ivan Mboto has over three years of experience reporting on politics and current affairs in Kenya

Three human rights activists from Nairobi have filed a lawsuit against the Kenyan government, challenging its policy of denying inmates the right to conjugal visits.

The petition was submitted to the Milimani High Court, seeking to compel the government, through the Ministry of Interior and the Prisons Department, to allow prisoners to have intimate sessions with their partners.

According to the activists John Wangai, Peter Agoro, and Anthony Murimi, the continued denial of conjugal rights to prisoners violates Article 45 of the Kenyan Constitution, which guarantees the right to family.

They also argue that the policy contravenes international human rights law and customary law, which recognise the importance of conjugal relations in maintaining family bonds.

The petitioners claimed that the restrictive policy has subjected inmates to severe emotional and psychological distress by preventing them from maintaining intimate relationships with their loved ones. They argued that this deprivation disrupts family unity and undermines the integrity of the family unit.

“The unconstitutional and illegal denial of conjugal rights to prisoners by the 1st and 2nd Respondents has led to severe emotional and psychological consequences on both the prisoners and their family members… the right to family life includes the right to maintain intimate relationships, which is integral to preserving the integrity of the family unit,” the petition read in part.

The activists further argued that denying conjugal visits to inmates is discriminatory, as this right is available to individuals outside the prison system.

They maintained that this disparity violates Article 27 of the Constitution, which ensures equality before the law and equal protection under the law. They also cited Article 28, arguing that the right to dignity includes the preservation of personal relationships, including conjugal bonds.

Wangai, Agoro, and Murimi argued that the policy not only infringes on the right to dignity but also contributes to marital breakdowns and family disintegration. They asserted that the inability of prisoners to maintain intimate connections with their spouses leads to failed marriages, broken families, and high rates of infidelity, thereby undermining the constitutional protection of the family under Article 45.

The petitioners raised additional concerns that the denial of conjugal rights contributes to the spread of homosexuality within male prisons, leading to an increased rate of HIV transmission.

“That the results of the 1st and 2nd Respondents' unconstitutional actions have been rampant homosexuality in men’s prisons, which has also led to an increase in the spread of HIV.

That as a result of the 1st and 2nd Respondents’ ultra vires actions, prisoners’ marriages—which are sacred unions—end up collapsing as partners leave the marriage due to sexual starvation, leading to high cases of infidelity,” they argued.

The petitioners asked the court to find that the government’s failure to recognize and facilitate conjugal visitation rights for prisoners is unconstitutional, null and void ab initio.

Another prayer was an order of mandamus compelling the government to recognize conjugal visitation as an integral part of the right to family under Article 45 of the Constitution of Kenya 2010.

The petitioners also asked the court to issue an order compelling the government to develop and implement a comprehensive policy and regulatory framework for conjugal visitation within 12 months.

As a matter of urgency, the activists asked the court to compel the government to pilot conjugal visitation programs in select prisons as an interim measure.

In 2023, Mary Muthoni, who was then the permanent secretary for correctional services, urged women in prison to focus more on their children at home instead of wanting to be intimate with their husbands.

She raised concerns that allowing conjugal visits could lead to inmates getting pregnant, which would make it difficult to raise babies in prison.

Speaking at Shimo la Tewa Prison, Muthoni suggested that jailed mothers should prioritize their children’s needs at home over maintaining intimate relationships.

Source: TUKO.co.ke