What next for LGBTQ+ after association win?

Case challenging criminality of gay sex will be keenly watched for ruling

In Summary

• Supreme Court approved registering LGBTQ groups; sex and marriage are still illegal

Activist waves a gay pride flag during a protest in Nairobi
Activist waves a gay pride flag during a protest in Nairobi
Image: FILE

On February 24, the Supreme Court rendered itself on a case regarding a decision by the NGO Coordination Board not to register an organisation seeking to champion for the rights of the LGBTQ community. The decision has led to much talk, but it remains largely misunderstood.

To begin with, as the court stated, it is important to note that the case was not about decriminalisation of homosexuality, nor legalisation of same-sex marriages. It was concerned with whether members of the LGBTQ community can form an association.

The matter began in 2015, when one Eric Gitari sought to reserve a name to register an organisation. The names provided included the phrase "Gay and Lesbian" as its object was to champion for the rights of sexual minorities. The NGO Coordination Board refused to register the organisation on grounds that it offended the penal code.

The particular sections of the penal code in question were those making it criminal for one to have carnal knowledge against the order of nature. Based on this, the registration was denied. A case was then filed at the High Court, challenging this decision.

The main contention by the petitioners was that the decision by the NGO Coordination board infringed on their constitutional right to freedom of association and was discriminatory.

In agreeing with them, the High Court stated that the law does not forbid one from identifying as a member of the LGBTQ community, nor does it prevent them from associating with one another. What is illegal is engaging in sexual intercourse with a person of the same sex.

The case was appealed twice, and the Supreme Court upheld the decision of both lower courts.

The question many may ask is, are same-sex relationships legal in Kenya? Presently, there is no law forbidding one from dating a member of the same sex. Which then makes it legal, notwithstanding the prevalence of homophobia in society.

However, the Supreme Court cautioned that sex between members of the same sex is unlawful. So, same-sex couples can be in relationships so long as they do not relate sexually. They also have the right to form associations.

The Supreme Court also found the decision by the NGO Coordination board to be discriminatory as the complainants were treated differently based on their sexual orientation.

It will still take much legal reform for the LGBTQ community to fully express themselves in the Kenyan legal space. As was stated in Justice William Ouko's dissenting opinion, they have an option to rally Parliament to repeal the sections of the Penal code that criminalise same-sex sexual relations.

Given the dominant perception in the country on the issue, one can postulate that that may not happen in the foreseeable future. Even if it were to happen, they would still not have the right to enter into marriages.

Article 45 (2) of the Constitution provides that every adult has the right to marry a person of the opposite sex. This provision falls under Chapter Four of the Constitution, the Bill of Rights, which cannot be amended by Parliament. The Constitution provides that any amendment that touches on the Bill of Rights must go through a referendum. Under the current Constitution, it would, therefore, take a referendum to allow same-sex marriages to be legal.

It may be worth noting that currently, there is a case before the Appellate court challenging the constitutionality of the sections of the penal code that criminalise carnal knowledge against the order of nature.

Setting the Record Straight

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Correspondent, Coast Region

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