What Supreme Court ruled on LGBTQ+ in Kenya
Last week’s judgment by the Supreme Court has sparked reactions from leaders, institutions and Kenyans online.
The controversial ruling has got people divided with some leaders including Senate speaker Amason Kingi vowing to challenge it.
In its ruling on February 21, the Apex court 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+ organisation in Kenya.
The court said the NGOs Coordination Board’s refusal to register the lobby group would violate human rights based on sexual orientation.
Even so, the court held that the country’s law – Section 162 of the Penal Code -that prohibits “unnatural offenses” (defined as having carnal knowledge with any man, woman or animal against the order of nature) are binding.
The court said those who will contravene the Penal Code, which criminalises “unnatural offences”, will be subjected to sanctions prescribed in the existing laws. Section 163 defines a penalty of imprisonment for seven years for the offenses.
By a majority of three judges against two, 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.
They held that the board’s decision to refuse registration of an LGBTQ+ group was “unreasonable and unjustified”.
The petition was filed by activist Erick Gitari whose bid to register an LGBTQ+ organisation in Kenya was denied on the grounds of “Sections 162, 163 and 165 of the Penal Code which criminalises gay and lesbian liaisons.
However, the Supreme Court said the decision was discriminatory, in view of provisions of Section 27(4) of the Constitution.
The said provisions say the “State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth”.
The top court noted that by refusing to register the NGO, the persons were being convicted before contravening the law.
“Such action is retrogressive. We, therefore, affirm the decision of the Court of Appeal that the appellant violated Gitari’s right to freedom of association under Article 36 of the Constitution,” said the judges.
The court, however, pointed out that all persons, whether heterosexual, lesbian, gay, intersex or otherwise, will be subject to sanctions if they contravene existing laws, including Sections 162, 163 and 165 of the Penal Code.
Backlash
President William Ruto and his deputy Rigathi Gachagua are the latest to condemn the Supreme court ruling.
The President said he will not allow the country to head in that direction. While Gachagua termed it a ‘satanic beliefs’.
Speaking on Thursday during the launch of the Women Enterprise Fund and the second product of the Hustler Fund at KICC, Ruto said Kenya is a religious country guided by morality.
“We respect the Court but… I will not allow it in Kenya,” he said.
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