• In the case, LGBTQ activist Eric Gitari had challenged the refusal by the NGO Coordination Board to register their association.
• DCJ Philomena Mwilu, justices Smokin Wanjala and Njoki Ndung’u ruled in favour of the LGBTQ while justices William Ouko and Mohammed Ibrahim gave dissenting opinions.
Image: BBC
The Supreme Court has given the green light for the registration of LGBTQ society.
In the case, LGBTQ activist Eric Gitari had challenged the refusal by the NGO Coordination Board to register their association.
The case moved from the High Court all the way to the Supreme Court.
In the judgment delivered on Friday, the Supreme Court ruled that the NGO Coordination Board violated Gitari's right to freedom of association by refusing to register his NGO on the basis of his sexual orientation.
The judges ruled that the decision by the board was discriminatory.
Deputy Chief Justice Philomena Mwilu, justices Smokin Wanjala and Njoki Ndung’u ruled in favour of the LGBTQ while justices William Ouko and Mohammed Ibrahim gave dissenting opinions.
"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," the court ruled.
The court further said 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.
The court said the use of the word sex does not connote the act of sex per se but refers to the sexual orientation of anyone’s gender, whether heterosexual, lesbian, gay or intersex.
The three judges said the board’s action of refusing to reserve the name of Gitari’s intended NGO on the ground that “Sections 162, 163 and 165 of the Penal Code criminalises gay and lesbian liaisons” was discriminatory in light of Section 27(4) of the Constitution.
However, Justice Ouko said the board has discretion to refuse to register any association if it does not meet certain specified conditions spelt by law.
He said it does not concern issues of morality or same sex marriage or family units, but it’s the refusal by the NGO board to reserve the names given for registration.
Justice Ibrahim also agreed with Ouko, saying the decision of the NGO Coordination Board was not discriminatory and did not violate Article 27 of the Constitution.
“The freedom of association under Article 36 of the Constitution is not absolute and may be subject to limitation pursuant to Article 24,” he said.
“As long as Section 162, 163 and 165 of the Penal Code remain valid edicts of law, then the appellant could not have reserved a name or allowed the formation of an association with the very terms that imply or whose declared purposes are in support of actions that are against the law or expressly banned by it,” he said.
Section 162, 163 and 165 are the ones that criminalises same sex relationship.
He agreed with judge Ouko that the decision of the Executive Director of the NGO Coordination Board did not violate Article 36 of the Constitution.
The NGO board had refused to reserve the following names submitted by Gitari-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 Lesbian Human Rights Observancy and Gay and Lesbian Human Rights Organisation.
Judge Ibrahim said the main concern of the board was the word gay and lesbian in the proposed names.