Victory As Kenya’s Highest Court Allows Registration Of LGBT Organisation

Supreme Court rules in favour of the National Gay and Lesbian Human Rights Commission and ends decade-long legal case

[London, 24 February 2023]

The Kenyan Supreme Court has today ruled that the National Gay and Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a non-governmental organisation (NGO).

In their judgment, the Supreme Court judges held that, ‘(…) it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants.’

Importantly, they also ruled, ‘Given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not.’

The Supreme Court is the apex court in Kenya meaning that the ruling is final, concluding a legal case lasting ten years.

In 2013, Eric Gitari, the former Executive Director of NGLHRC, challenged the Executive Director of the Kenya NGO Coordination Board’s refusal to permit him to apply for registration of an NGO under a name containing the words ‘gay’ or ‘lesbian’. The judges ruled in his favour at the High Court in 2015 and again at the Court of Appeal in 2019.

Without exception, in all three Courts, the judges found that the refusal, which was on the purported basis that homosexuality is criminalised in the east African country, was unconstitutional, and directly in violation of the guarantee of freedom of association, irrespective of sexual orientation.

Téa Braun, Chief Executive of the Human Dignity Trust, says, ‘Today the tenacity of Eric Gitari, NGLHRC and all LGBT Kenyans wishing to exercise their constitutionally protected right to freely meet and organise has been rewarded with this unequivocal ruling from the Supreme Court.’

‘Throughout this process, three courts have rightly confirmed that organisations that seek to safeguard respect for human rights should be allowed to do so with the full protection of the law, and this includes organisations working in support of LGBT people even where draconian laws criminalising same-sex intimacy still exist. The Human Dignity Trust wholeheartedly applauds their judgments.’

Njeri Gateru, Executive Director of NGLHRC, says, ‘The Supreme Court's decision to uphold the lower courts’ rulings is a triumph for justice and human rights. At a time where the Kenyan LGBTIQ+ community is decrying the increased targeting and violence; this decision affirms the spirit and intention of the Constitution to protect all Kenyans and guarantee their rights.’

Sections 162(a) and (c), 163 and 165 of the Kenyan Penal Code, which were introduced into the lawbooks by British colonisers over 100 years ago, establish a series of criminal offences, one of which, having ‘carnal knowledge against the order of nature’, is punishable by up to 14 years in prison. These laws foster and enable public targeting of lesbian, gay, bisexual and transgender people for violence and discrimination.

In 2014, the African Commission on Human and Peoples’ Rights passed Resolution 275, urging all African Union member states to create favourable conditions for human rights defenders working on LGBT issues, such as NGLHRC in Kenya, and to help prevent the high levels of violence and discrimination such people experience. Regrettably, many other African countries, including Uganda and Nigeria, have also erected obstacles to the registration of LGBT organisations due to discriminatory penal codes and other oppressive laws and practices.

Notes

• Read the judgment from the Kenyan Supreme Court
• A case digest will shortly be available on HDT’s library of resources
• Visit the Human Dignity Trust’sinteractive map to see which countries across the world continue to criminalise LGBT people
• TheHuman Dignity Trustworks with local partners around the world to defend human rights in countries where private, consensual, same-sex sexual activity is criminalised. We provide free technical assistance to LGBT activists, civil society organisations, lawyers and governments wishing to challenge and reform laws that persecute people on the basis of their sexual orientation and/or gender identity

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