Supreme Court verdict castigates government over refusal to register LGBTQ organization
3 min read
Supreme Court dismisses government appeal to register LGBTQ organization ending an 11-year legal battle
Supreme Court dismisses government appeal to register LGBTQ organization ending an 11-year legal battle.
The Supreme Court has dismissed an appeal by the government to bar registration of gays and lesbians lobby groups, ending an 11-year legal battle by activists seeking the official registration of an LGBTQ+ organization in Kenya.
In its verdict delivered by a five-judge bench on Friday, February 24, the Supreme Court castigated the NGOs Co-Ordination Board for refusing to register four names for an LGBTQ organization on the grounds that same-sex marriage is outlawed in Kenya.
Even though the law forbids same-sex marriages, three of the five justices on the bench decided that community members have the freedom to associate. As a result, it was unlawful and discriminatory to refuse to register them.
The court was of the view that the board’s refusal of the registration of a non-governmental organization (NGO) seeking to champion the rights of LBGTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer, or Questioning) persons in Kenya was discriminatory.
Justices Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala, and Njoki Ndung’u said it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of sexual orientation.
However, Justices Mohamed Ibrahim and William Ouko dissented and held a firm stance that the law was clear on the illegality of gays and lesbians.
They held that the board’s decision to refuse registration of an LGBTQ+ group was “unreasonable and unjustified”.
“It would be unconstitutional to limit the right to associate through denial of registration of an association purely based on the sexual orientation of the applicants,” the ruling read.
“It was of the view that the word “including” under the same Article is not exhaustive, but only illustrative and would also comprise “freedom from discrimination based on a person’s sexual orientation.”
“Therefore, 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 criminalises Gay and Lesbian liaisons” was discriminatory in light of Section 27(4) of the Constitution,” the court stated.
However, the court held that the country’s law – Section 162 of the Penal Code -that prohibits “unnatural offences” (defined as having carnal knowledge with any man, woman, or animal against the order of nature) are binding.
The fall of Uhuru men continues as Githii Mburu quits KRA top job
Ahmednasir Abdullahi calls out Ruto for excluding LGBTQ community in his government
CNN puts Ruto on the spot over LGBTQ and the deportation of Chinese
The legal dispute emerged from activist Erick Gitari’s bid to register an LGBTQ+ organization in Kenya.
The board refused to reserve the name of Mr. Gitari’s intended NGO on the ground that “Sections 162, 163 and 165 of the Penal Code criminalizes gay and lesbian liaisons”.
The names rejected by the board included the National Gay and Lesbian Human Rights Commission, National Coalition of Gays and Lesbians in Kenya, National Gay and Lesbian Human Rights Association, Gay and Lesbian Human Rights Council, Gay and Lesbian Human Rights Observancy and Gay and Lesbian Human Rights Organisation.
In its explanation, the board noted that the words, “gay and lesbians” in the proposed names were objectionable to the Board.
In the initial ruling, the High Court judge backed the activist and found that the NGO Board’s refusal violated the applicant’s right.
However, a dissatisfied NGO Board appealed against the decision at the Court of Appeal, albeit with no breakthrough.
The Friday, February 24, ruling now paves the way for the LGBTQ organization to make a fresh application in its quest to formalize its operations in the country.
Also read,
“Kibaki’s son” claims his life is in danger
Mudavadi to launch office of the spouse to Prime Cabinet Secretary
Revealed! Ruto forced KRA boss, Githii Mburu to resign
Follow us
