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.