- Supreme Court held that Sections 162, 163, and 165 of the Penal Code, pursuant to Article 24 of the Constitution, do not express the intention to limit the right to freedom of association of LGBTQI persons.
- Court of Appeal held that the said persons are still subject to the law and would be sanctioned if they were to contravene Sections 162, 163 and 165 of the Penal Code.
The 1st respondent’s intention was to register an organization to champion for the rights of LGBTQI, and this has no correlation whatsoever with the offences articulated under sections 162, 163 and 165 of the Penal Code.Supreme Court
It is no secret that the Supreme Court’s decision in Petition No 16 of 2019 NGOs Co-ordination Board versus Eric Gitari & 5 others, has brought Kenyan discourse to an all time high. There seems to be an underlying belief that the Supreme Court has now sanctioned what the Penal Code terms “unnatural acts” through its decision. Is that really the case?
The initial petition in this matter was filed at the High Court and it raised valid constitutional issues. The material issues in that petition and the petition of appeal before the Supreme Court were: whether the NGOs Co-ordination Board infringed upon the rights of members of the LGBTQI community to form an association of their choice; and whether the board’s decision to decline to reserve the name of the petitioner’s intended NGO was discriminatory.
In 2015, the NGOs Co-ordination Board declined to reserve the name for the petitioner’s intended NGO whose aim was to champion the rights of LGBTQI persons. What were the proposed names of the NGO? Gay and Lesbian Human Rights Council; Gay and Lesbian Human Rights Observancy; Gay and Lesbian Human Rights Organization; Gay and Lesbian Human Rights Commission; Gay and Lesbian Human Rights Council and Gay and Lesbian Human Rights Collective.
The High Court bench decided that the measure taken by the board to deny reservation of one of the aforesaid names was untenable. The board had earlier on submitted that it took such a measure given that Sections 162, 163 and 165 of the Penal Code criminalise gay and lesbian relations.
However, the High Court in its judgment quipped that as per the letter from the board to the petitioner, the board would seemingly reserve the name of the intended NGO were it to be referred to as the Cattle Dip Promotion Society, despite it still championing the rights of the LGBTQI community.
The court found that the step by the board to decline reservation of the name of the NGO amounted to denying LGBTQI persons their right to freely associate. The judges also held that such a measure was discriminatory on the ground of sexual orientation; quite contrary to the principles of the Constitution.
On appeal at the Court of Appeal, the court by a majority of 3:2, upheld the High Court’s decision that the move to decline the reservation of one of the NGO’s names translated to contravening the LGBTQI community’s right to form an association of their choice and that this declination was discriminatory since it was based on the ground of sexual orientation.
Since the measure to decline registration of the NGO was based on the ground of sexual orientation, the court also found the same to be discriminatory and contrary to constitutional principles.
The court in its judgment also stated that Article 36 of the Constitution was clear that every person has the right to freedom of association and that includes persons who are affiliated to “the descriptions in the acronym LGBTQI”. Furthermore, the court held that the said persons are still subject to the law and they would be sanctioned if they were to contravene Sections 162, 163 and 165 of the Penal Code.
Determined, and in line with Article 163(4) of the Constitution, the NGOs Co-ordination Board filed a petition of appeal before the Supreme Court. One of the orders the appellant was seeking, was that the court reverses and sets aside the judgment of the Court of Appeal.
The Supreme Court, before deciding on the same material issues that were previously before the High Court, made a noteworthy pronouncement. The court issued a disclaimer stating that it found it necessary to emphasise that the matter before it was not about the legalisation or decriminalisation of LGBTQI, or the morality of same-sex marriage.
The court was clear that the material issues before it were whether the refusal to register an organisation of persons who fall within the LGBTQI community contravened their right to freedom of association and freedom from discrimination.
The Supreme Court, while affirming the decision of the Court of Appeal, held that the refusal to register the impugned NGO infringed upon the LGBTQI community’s right to freedom of association. It also held that despite Sections 162, 163, and 165 of the Penal Code prohibiting any person from committing “unnatural acts”, these sections, pursuant to Article 24 of the Constitution, do not express the intention to limit the right to freedom of association of LGBTQI persons.
Most importantly, the Supreme Court judges found that “The 1st respondent’s intention was to register an organization to champion for the rights of LGBTQI, and this has no correlation whatsoever with the offences articulated under sections 162, 163 and 165 of the Penal Code.”
Since the measure to decline registration of the NGO was based on the ground of sexual orientation, the court also found the same to be discriminatory and contrary to constitutional principles. The court awarded costs to the respondent in the matter and dismissed the appeal.
Given the above sequence of events, should the Supreme Court judgment still evoke that much discourse? I believe not, but what say you?
Lawyer