Supreme Court dismisses petition challenging registration of LGBTQ
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Supreme Court throws out Peter Kaluma's petition that sought to overturn ruling on LGBTQ registration in Kenya
Supreme Court throws out Peter Kaluma’s petition that sought to overturn ruling on LGBTQ registration in Kenya.
The lawsuit brought by Peter Opondo Kaluma, a member of parliament for Homa Bay Town, asking the Supreme Court to reconsider its ruling on the definition of sex, was dismissed on Tuesday by the Supreme Court.
In his appeal, Kaluma contested the Supreme Court’s decision and the way the top court had defined the term “sex” in the context of the LGBTQ issue.
The Apex court dismissed Kaluma’s petition on the grounds that the Constitution doesn’t limit the freedom of association of LGBTIQ persons merely due to their sexual orientation.
“Flowing from our findings above, the final orders to be made are as follows: (i) The Notice of Motion dated 9th March 2023 is dismissed,” the ruling read in part.
The Supreme Court held that Sections 162,163 and 165 of the Penal Code and the provisions of Article 24 of the Constitution do not convey the intention to limit the freedom of association of LGBTIQ persons merely due to their sexual orientation.
“On the provisions of Article 36, the Court found that the 1st respondent’s limitation of the 2nd respondent’s right to freedom of association was not proportionate to the aim sought for registration of the proposed NGO.
“This Court also held that the word “sex” as used in Article 27 of the Constitution, was to be interpreted as to include the expression “sexual orientation,” the Supreme Court observed.
In his case to the Supreme Court, Kaluma requested a stay of the orders directing the NGO Coordination Board to register LGBTQ.
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In addition, Kaluma requested that the Justices review and overturn the judgment from February 24, 2023, in which the Court found and ruled that Article 27(4) of the Constitution’s use of the term “sex” “refers also to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise.”
“The Court be pleased to review and set aside the judgment of this Court dated 24th February 2023 where at paragraph 79 it found and decreed that the appellant’s action of refusing to reserve the name of the 1st respondent’s intended NGO on the ground that Sections 162, 163 and 165 of the Penal Code criminalizes gay and lesbian liaisons was discriminatory in view of Article 27 (4) of the Constitution,” the judgment read in parts.
However, while dismissing Kaluma’s appeal, the Supreme Court established that homosexuals have the right not to be discriminated against directly or indirectly.
“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.
The Supreme Court also ordered the Homa Bay Town Member of Parliament to bear the costs of the appeal.
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