Supreme Court rules gays, lesbians have right of association
The
Supreme Court of Kenya has ruled that the Lesbian, Gay, Bisexual, Transgender
and Queer (LGBTQ) community have the right to association.
The
judgment brings to a close a nearly decade-long court battle and debate on the
rights accorded to gays and homosexuals in the country.
The
judges in their majority judgment said the decision by the lower courts to deny
the members of the gay community in Kenya their right to register as an
Non-Governmental Organisation (NGO) was discriminatory.
The
push to have the rights of the community to be registered started in 2013, when
the National Gay and Lesbians Human Rights Commission sought to have the Non
Governmental Organisation Co-ordination Board reserve a name out of a list for
the advancement of their rights.
The
list included; 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 Human Rights Observancy, and Gay and Lesbian Human Rights Organization.
The
board however declined, terming the names unacceptable, triggering the court
processes that have seen the gay rights group battle it out in court with the
board, religious organisations amongst other interested parties.
The
courts ruled in favour of the gay rights body in 2015, and the board appealed
the ruling in 2015. In 2019, the Court of Appeal dismissed the board’s appeal,
confirming the right to association for LGBTQ.
The
NGO board appealed this, bringing the matter to the doorstep of the Apex court,
which has upheld the decisions of the court of appeal.
Three
Supreme Court judges; Deputy Chief Justice Philomena Mwilu, Justice Smokin
Wanjala and Justice Njoki Ndung’u, ruled in the majority side on the issue.
"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," they stated in their ruling.
Justice
Mohamed Ibrahim and William Ouko dissented, saying that homosexuals shouldn’t
be allowed to form recognised associations in Kenya as it was against the
country's laws.
Part
of their ruling read: “To reserve or register the names proposed by the 1st respondent would
have the effect of giving recognition to groups whose declared objects and
purposes are contrary to law.”
The
ruling now gives members of the LGBTQ community the power to seek formal
recognition by the Non-Governmental Organizations Co-ordination Board.
The
ruling comes as Homa Bay Township MP George Kaluma indicated his intention to
bring to the House a bill that proposes legislation to criminalize and punish homosexuality and other unatural acts as well as the promotion of such acts.
“The proposed law intended to further the provisions of
article 45 (2) of the constitution of Kenya and to protect the family will not
only consolidate all existing laws relating to unnatural sexual acts but also
increase the penalty for those convicted of engaging or promoting the acts to
imprisonment for life or commensurate sentence,” wrote Kaluma in a letter to
National Assembly Speaker Moses Wetangula.
Want to send us a story? SMS to 25170 or WhatsApp 0743570000 or Submit on Citizen Digital or email wananchi@royalmedia.co.ke
Comments
No comments yet.
Leave a Comment