KERKERING: LGBTQI judgment and judges' difficult decisions

This Katiba Corner looks at the Supreme Court’s judgment in NGOs Coordination Board v Eric Gitari & Others and the role of judges in making difficult decisions.

For the few who may not know, the case was about whether the NGO Coordination Board violated the constitutional rights of Eric Gitari by refusing to register an NGO that included the phrase ‘gay and lesbian’ in its title.

The Supreme Court made the following main findings: That the NGO Coordination Board had violated his right to freedom of association; and that the Board’s decision violated his right to freedom from discrimination.

Given the strong reactions to the Supreme Court’s decision, the topic is ripe for discussion. But first, a caveat: the Supreme Court decision has proven divisive and has raised many issues that deserve extended and careful treatment.

Addressing the function of judges in a challenging case like this is appropriate for this column. Still, other issues are, of course, equally important or fitting to discuss here. This issue is just one thread in a tangle that, if pulled out and examined, will allow the other issues to be addressed with more information and better focus.

On one level, the case was not difficult. The Supreme Court was presented with a case that required interpretation of the Constitution, and it reached a decision that affirmed the conclusions of the Court of Appeal and the High Court. This happens all the time; the Supreme Court’s job is to hear appeals from the Court of Appeal that involve ‘the interpretation or application of this Constitution’. Article 163(4). And, generally speaking, appealing to the Supreme Court is an uphill task.

Courts are more likely to affirm a lower court’s judgment than to overturn it. And when a litigant has lost at the High Court and the Court of Appeal, the likelihood of success at the Supreme Court is even less.

The case also did not involve particularly complex facts or require expertise outside the Court’s knowledge. The only question was how to apply constitutional principles to the events. Cases involving a narrow application of the law to uncontroverted facts are heard and decided scores of times each year, most often with only a brief mention.

What made this case difficult did not have to do with the law. It had to do with the topic addressed – the rights of LGBTQI (Lesbian, Gay, Bi-sexual, Transsexual, Queer and Intersex) communities.

The judges conducted themselves as they do nearly every day concerning legal questions they have faced often – but the topic was politically and socially explosive. Nearly everyone has a strong opinion about the question, and many used the decision to decide which of the five judges is on their side. The judges were vilified or lauded based on what the public assumed their individual beliefs were.

Although the impulse to assume that judgments reflect personal beliefs may be natural, it is erroneous, highlighting one of the greatest struggles judges face when making difficult decisions. The truth is, none of us knows how any of the five judges feels personally about LGBTQI issues – at least not based on the judgment delivered. After closely examining each opinion, I could not find a single sentence or phrase that betrayed how the respective judges personally felt.

Our Constitution demands the Judiciary be independent. A fundamental principle of judicial independence is that the Judiciary must not be captured by the individual beliefs of its judges.

Article 1(3)(c) requires judges to perform their duties ‘in accordance with the Constitution’. Indeed their oath of office goes further, requiring them to ‘impartially do Justice in accordance with this Constitution… and the laws and customs of the Republic, without any fear, favour, bias, affection, ill-will, prejudice or any political, religious or other influence’.

When applying and interpreting the Constitution, judges must uphold specific values and principles, including ‘equality, human rights, non-discrimination and protection of the marginalised’. Article 10(2). These constitutional provisions underscore that an independent judiciary cannot exist without unbiased and impartial decision-makers.

The Judicial Service Code of Conduct 2020 is explicit about the threat that an individual judge’s personal beliefs may cause to judicial independence. Rule 7(e) states that judicial independence requires judges to ‘exercise [their] judicial function without being influenced by personal feelings, prejudice, or bias’.

Judges cannot let extraneous influences cloud their judgment; instead, they must rely on their own assessment of the facts and apply a conscientious understanding of the law. Some people have actually refused appointment as judges because they would have had to apply law against their consciences. Other times, judges recuse themselves from cases in which their personal beliefs would improperly influence their decision.

NGOs Coordination Board requires us to ask two questions: First can judges really set aside personal feelings, prejudice, or bias? The answer to the first question is yes: A conscientious judge can reach a decision that is true to the law and the facts, even if it feels like a betrayal of personal values or beliefs. Judges must rely on their legal researchers, staff, and colleagues to ensure they don’t slip. And they must develop thick skins: absorbing the personal criticisms that will inevitably result.

It is not a perfect system. Certain flaws in a judge’s reasoning can betray a reliance on personal prejudice rather than a conscientious application of the law.

For example, asserting that there is nothing to disprove a claim rather than identifying what supports that claim; appealing to what the people believe or intended rather than what the sources say (general references to a unified culture or the people’s belief are giveaways); failing to recognise alternative arguments that may undermine or discredit the judge’s opinion; using one term in two different ways, or shifting from one issue to a separate one.

The existence of such flaws does not necessarily prove bias – it could show merely faulty logic. It is clear, however, that the best way to demonstrate a lack of bias is to make rigorous, well-reasoned arguments.

Second why this knee-jerk reaction to assume that a judge’s decision was motivated by personal feelings, prejudice, or bias? It seems that human beings are programmed to assume that arguments are based on personal belief, bias, or individual motive.

The assumption that personal belief or bias motivates others is often a useful shortcut for solving problems in our day-to-day lives. But it is a shortcut, and often unreliable. We can all benefit from stepping back and examining the arguments that inform our beliefs and the beliefs of others.

When it comes to judicial decisions, that shortcut is particularly inapt. It causes us to take judicial opinions out of context and view them as statements about what the judges believe. Because judges hold authority, we rush to the conclusion that the judge’s personal beliefs are now being imposed on us.

If people were to read the NGOs Coordination Board judgment carefully – opinions I have read by many of the loudest voices suggest they have not – they might not react so strongly.

For supporters of LGBTQI rights, the judgment is far from a resounding victory. It established the LGBTI community has the rights to freedom from discrimination and association, but much still needs to be done to ensure that LGBTQI individuals can live safely and openly in Kenya.

For opponents, the judgment hardly justifies the ‘world is coming to an end’ response we have seen. Gay marriage and sexual activity, for instance, were never issues in the case, even though they seemed to be primary concerns for many.

But perhaps most importantly, people would see that the case is less about what judges believe – or even what any given individual believes than what the Constitution requires.

The judges were not attempting to impose their belief systems on the rest of us; they were attempting to conscientiously apply the law to the facts.

It is time to leave the judges out of the debate and focus on what they focused on: What a conscientious application of the Constitution and the law means under the circumstances.

The author is the litigation manager at Katiba Institute