• The battle over registering a gay rights group has reached the Supreme court.
• Opponents said it will lead to moral decay; supporters said there's no evidence of moral decay and the petitioners must provide concrete evidence.
The Supreme Court on Tuesday was asked to reject registration of an organisation for gay rights on grounds it would erode family values and harm society.
The Non-Governmental Organisations Coordination Board told the Supreme Court that organisations can be registered to protect the rights of persons but not to promote activities that violate any laws or policies.
The board was represented by lawyer Charles Kanjama.
“Its registration will harm family values and these values are protected in the Constitution. Approaches by western countries seeking to impose their own values on us will not be accepted but resisted by African countries,” Kanjama said.
The board is challenging a decision by Court of Appeal that upheld a 2015 High Court decision compelling it to register the National Gay and Lesbian Human Rights Commission as an NGO.
The board urged the Supreme Court judges to overturn the decision of the lower courts.
The submission was supported by the Office of the Attorney General, which said the names being sought for registration have homosexual connotations, and its registration is a violation of Section 13 of the NGO act.
The section indicates the Board may refuse registration, if it is satisfied the proposed activities or procedures are not in the national interest. The AG asked the court to allow the appeal by the board in the public interest.
In response, Eric Gitari urged the Supreme Court to uphold the decision of Court of Appeal and allow registration of the NGO.
Gitari, a legal practitioner, is an openly gay man.
Through lawyer Sande Ligunya, he told the judges he wants to register an association to enable LGBTQ issues to be addressed and that his identity as a person goes beyond sexual conduct.
The core objective of the proposed organisation, Gitari said, is the advancement of human rights. Specifically, the proposed NGO would address the violence and human rights abuses suffered by gay and lesbian people.
Katiba Institute called for its registration and said the assertion that homosexuality and lesbianism lead to disease, moral decay in society and increase in crime must be supported by evidence from the board.
Gitari had approached the NGO Coordination Board seeking registration of the organisation. He is a co-founder of the National Gay and Lesbian Human Rights Commission.
The board rejected the application on grounds the people whose rights the proposed NGO will seek to protect are gay and lesbian persons.
Gitari then petitioned the High Court that allowed him to register the proposed NGO.
In their notice to the Supreme Court, the Christian forum said, "Being dissatisfied with the entire judgment and order of the appellate court, [we] intend to appeal against the whole decision."
Judgment will be delivered on notice.
It is not illegal to be gay or lesbian in Kenya, however, homosexual acts violate the Penal Code.
In the decision, justices Isaac Lenaola, Mumbi Ngugi and George Odunga declared Gitari was entitled to exercise his constitutionally guaranteed freedom to associate by being able to form an association.
The bench found 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.
"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. [These] are criminal offences with respect to which clear penal consequences are provided," the bench said.
The matter was appealed but the Court of Appeal upheld the High Court’s findings.
(Edited by V. Graham)