NON-DISCRIMINATION

Win for gays as court upholds their right to form organisation

In Summary

• Eric Gitari had approached the NGO coordination Board seeking to register his NGO.

• After application was rejected, Gitari went to High Court

Activist waves a gay pride flag during a protest in Nairobi in 2012.Photo/File
Activist waves a gay pride flag during a protest in Nairobi in 2012.Photo/File

The Court of Appeal has upheld a decision by a lower court that allowed members of the lesbian, gay, bisexual, and transgender (LGBT) community to formally register their own organisation.

However, Justice Daniel Musinga and Roselyn Nambuye dissented saying the High Court had no jurisdiction to entertain the petition filed by Eric Gitari.

Gitari is a co-founder of the National Gay and Lesbian Human Rights Commission.

The National Gay  and Lesbian Human Rights Commission released a statement applauding the court's decision.

Njeri Gateru, the executive director of NGLHRC, said, “The judges have chosen to stand by the Constitution that allows for like minded persons to meet and organise, formally. That is a freedom enshrined in the Constitution and the fact that the Court of Appeal agrees with us and allows us to register as an organisation is not only a win for us as an organisation, but a win for Human Rights.”

She said the ruling will ensure inclusivity and will set a positive precedent for other rights organisations in Kenya and around Africa.

Musinga agreed with the Non-Governmental Organisations Coordination Board's sentiments that Gitari's proposed NGO is "hell-bent on destroying the cultural values of Kenyans, and must therefore not be allowed".

Musinga said Gitari by proposing registration of the NGO would be promoting prohibited acts.

But Justices Philip Waki, Asike Makhandia and Martha Koome  affirmed the decision of the High court and said all human beings should not be denied their fundamental rights because of how they choose to live their life.

Makhandia said the board by refusing to accept names for proposed NGOs, violated Gitari's right to freedom.

"In a society that is diverse as Kenya, there is need for tolerance and in any democratic society there will always be a marginalised group. This appeal therefore lacks merit and is dismissed," he said.

In addition, presiding Judge Waki said the LGBT community has a right to freedom of association and that the criminal procedure code does not criminalise those that want to form such a group.

He said there is nothing unlawful and criminal about the objectives of the proposed NGO.

"The issue of LGBT is rarely discussed in public. But it cannot be doubted that it is an emotive issue. The reality is that this group does exits and we can no longer deny that. Let it go down that I will not be the first to throw a stone and harm them," said the Judge.

According to the court documents, Gitari had approached the NGO coordination Board seeking to register his NGO.

The core objectives of the proposed organisations, according to the Gitari, is the advancement of human rights.

Specifically, the proposed NGO would seek to address the violence and human rights abuses suffered by gay and lesbian people.

The board however rejected his application for registration on the basis that the people whose rights the proposed NGO will seek to protect are gay and lesbian persons.

Gitari then petitioned the High Court which allowed him to register the proposed NGO.

 In the decision, Justice Isaac Lenaola, Mumbi Ngugi and George Odunga declared that Gitari was entitled to exercise his constitutionally guaranteed freedom to associate by being able to form an association.

It was the bench's finding that the board violated Gitari's right to non-discrimination by refusing to accept the names proposed on the basis that the proposed NGO sought to advocate for the rights of persons who are not socially accepted.

"As we observed above, our understanding of the objectives of the proposed NGO is the protection of persons whose sexual orientation is gay or lesbian, as well as persons who are transgender or intersex, from discrimination and other violation of their rights," the bench said.

"It is not for the promotion of the sexual acts 'against the order of nature' prohibited by the Penal Code, nor is it to advance paedophilia as submitted by the Board, which are criminal offences with respect to which clear penal consequences are provided."