Kuwait's constitutional court has declared as unlawful an article of the country's penal code that criminalises the “imitation of a member of the opposite sex”.
The court issued its final ruling on Wednesday, after hearing an appeal from a Kuwaiti citizen charged under the law.
It found the law unconstitutional on the grounds that it was not specific enough to “legally determine a sinful act”.
Article 198 of Kuwait’s penal code deals specifically with acts of public immorality.
It was amended in 2007 to include the prosecution of those imitating the appearance of a member of the opposite sex, making the act punishable with imprisonment for up to a year, or a fine of up to 1,000 Kuwaiti dinars ($3,300).
No clear criteria
The section of the law that the court ruled on reads as follows: “Whoever makes a gesture or an indecent act in a public place, so that someone who is in a public place sees or hears it, that imitates the opposite sex in any way, shall be punished by imprisonment for a term not exceeding one year and a fine not exceeding 1,000 dinars, or one of these two penalties”.
The judges said the text did not include the clear and objective criteria that must be followed "to determine that legally sinful act, and what is considered to be an imitation of the opposite sex and what is not".
"Rather, its phrase was very general and broad, and it could be interpreted with more than one meaning, in a way that its interpretations may be multiple,” read the final conclusion of the court’s ruling, seen by The National.
The application of the law was left “to the authorities in charge of applying it according to their discretion and without any control to restrict them”, the court said, adding that the vague terms of the law had raised concerns about its application.
“[The article] contradicts the keenness of the constitution to guarantee and preserve personal freedom,” the ruling said.
‘Treatment, not imprisonment’
The verdict came after the hearing of a case brought by a Kuwaiti man who was charged under the law.
Lawyer Ali Al Arian told The National that his client identifies as a woman.
The person's medical records, dating back to early childhood, include a doctor's assessment that they have gender dysphoria, the distress caused by someone’s gender identity not matching their biological body, Mr Al Arian said.
“I argued that Article 198 of the penal code is unconstitutional," Mr Al Arian had told The National before the court’s decision.
"This article was amended in 2007 to penalise any form of imitation of the opposite sex. Since that amendment, the Ministry of Interior started applying this law and has been arresting transgender people without taking into consideration the health and mental aspects of their status.”
The Kuwait Bar Association held a symposium last week to debate the constitutionality of the article in question.
Some speakers said that people who “imitate the opposite sex” have psychological disorders and need treatment, not imprisonment.
“Transgender people should not be penalised unless sexual provocation is involved," said Mohammed Al Faili, a constitutional expert and professor in the Faculty of Law at Kuwait University.
"The problem is that the law has been unfairly applied when no harm to others has been done, this is why we believe that the law is unconstitutional.”
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Mercer, the investment consulting arm of US services company Marsh & McLennan, expects its wealth division to at least double its assets under management (AUM) in the Middle East as wealth in the region continues to grow despite economic headwinds, a company official said.
Mercer Wealth, which globally has $160 billion in AUM, plans to boost its AUM in the region to $2-$3bn in the next 2-3 years from the present $1bn, said Yasir AbuShaban, a Dubai-based principal with Mercer Wealth.
“Within the next two to three years, we are looking at reaching $2 to $3 billion as a conservative estimate and we do see an opportunity to do so,” said Mr AbuShaban.
Mercer does not directly make investments, but allocates clients’ money they have discretion to, to professional asset managers. They also provide advice to clients.
“We have buying power. We can negotiate on their (client’s) behalf with asset managers to provide them lower fees than they otherwise would have to get on their own,” he added.
Mercer Wealth’s clients include sovereign wealth funds, family offices, and insurance companies among others.
From its office in Dubai, Mercer also looks after Africa, India and Turkey, where they also see opportunity for growth.
Wealth creation in Middle East and Africa (MEA) grew 8.5 per cent to $8.1 trillion last year from $7.5tn in 2015, higher than last year’s global average of 6 per cent and the second-highest growth in a region after Asia-Pacific which grew 9.9 per cent, according to consultancy Boston Consulting Group (BCG). In the region, where wealth grew just 1.9 per cent in 2015 compared with 2014, a pickup in oil prices has helped in wealth generation.
BCG is forecasting MEA wealth will rise to $12tn by 2021, growing at an annual average of 8 per cent.
Drivers of wealth generation in the region will be split evenly between new wealth creation and growth of performance of existing assets, according to BCG.
Another general trend in the region is clients’ looking for a comprehensive approach to investing, according to Mr AbuShaban.
“Institutional investors or some of the families are seeing a slowdown in the available capital they have to invest and in that sense they are looking at optimizing the way they manage their portfolios and making sure they are not investing haphazardly and different parts of their investment are working together,” said Mr AbuShaban.
Some clients also have a higher appetite for risk, given the low interest-rate environment that does not provide enough yield for some institutional investors. These clients are keen to invest in illiquid assets, such as private equity and infrastructure.
“What we have seen is a desire for higher returns in what has been a low-return environment specifically in various fixed income or bonds,” he said.
“In this environment, we have seen a de facto increase in the risk that clients are taking in things like illiquid investments, private equity investments, infrastructure and private debt, those kind of investments were higher illiquidity results in incrementally higher returns.”
The Abu Dhabi Investment Authority, one of the largest sovereign wealth funds, said in its 2016 report that has gradually increased its exposure in direct private equity and private credit transactions, mainly in Asian markets and especially in China and India. The authority’s private equity department focused on structured equities owing to “their defensive characteristics.”
