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Kenyan judges launche LGBTQ Guidebook to sensitise judiciary on rulings

A guidebook to sensitise the Kenyan judiciary on LGBTQ rights and how to promote, protect and implement them launched.

Initiative for Equality and Non-Discrimination (INEND), an LGBTQI+ advocacy group, has launched a handbook to educate Kenya’s judiciary on LGBTQ rights and how to uphold, defend, and enforce them.

INEND in conjunction with the Kenya Judges and Magistrates Association (KMJA) unveiled the book titled, ‘A Legal Resource Guide on Implementing LGBTIQ+ Human Rights in Kenya’ on October 14, calling on the Judiciary to use it as a legal resource.

According to KMJA Public Secretary and High Court Judge Edward Muriithi, the book would encourage diversity and lessen prejudice against marginalized communities.

“By allowing the systems of justice to ensure that we all grow and flourish each other in our different ways, the launch of the bench book is an eye opener,” Muriithi said during the book’s launch.

“Let there be no unconstitutional discrimination since Article 20 (3) of the constitution mandates the court to develop the law on the rights with an interdict.

“We should not fear to look beyond the horizon of our limited traditional orthodoxy in legal provisions and training. We must engage in continuous critical thinking even on difficult subjects of ethics of life,” he noted.

High Court Judge Justice Mumbua Teresia Matheka, affirmed that the book will help her and other judicial officers who struggle with what she terms as “our moral judgments” by serving as reference material in handling LGBTQI+ cases.

“It will help us to see practically what our colleagues in this jurisdiction and in others have done when members of this community come into contact with the law or seek justice in any of its many forms from the courts,” Matheka stated.

“It is our constitutional mandate to uphold Article 27 of our Constitution, which prohibits any form of discrimination by any person or the state against any person, as well as to accept that the person referred to in the Constitution can come before us in any form.”

The bench book details several court cases and rulings in favor of LGBTQ petitioners from across Africa and abroad.

The idea is for Kenyan judges to adopt these rulings when handling similar LGBTQI+ cases.

“By providing details on past cases and the jurisprudence employed in them, the bench book displays how cases involving these minorities are handled, argued and settled. This black-and-white approach can, in turn, help set different criteria moving forward,” part of the 122-page book reads.

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On her end, INEND’s executive director, Esther Adhiambo, who authored the guidebook, emphasized the need for constant education on gay rights and issues adding that Kenya is one of the countries where LGBTQI+ individuals are not likely to get a fair hearing in court.

“Many decades after independence, we still have to educate each other on how to embrace diversity, how to live, how to end discrimination and more importantly how to read and interpret the Bill of Rights so that we understand once and for all that we are all equal before the law and before God,” she said.

The book comes at a time when the judiciary has faced criticism for allowing the registration of an NGO, the National Gay and Lesbian Human Rights Commission (NGLHRC), that advocates for LGBTQI+ rights.

As a result, Homabay MP Peter Kaluma moved to the Supreme Court seeking to challenge that ruling.

However, his case was thrown out with the Supreme Court noting that homosexuals have the right not to be discriminated against directly or indirectly.  

Subsequently, the judges established that Kaluma, a vocal critic of the LGBTQ community, did violate the rights of the gay community.

“Consequently, we did, by a Majority, agree with the findings of the High Court, and the Court of Appeal that LGBTIQ persona have a right to freedom of association, which includes the right to form an association of any kind,” the Supreme Court affirmed.

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