Kenya’s Supreme Court has upheld the National Gay and Lesbian Human Rights Commission (NGLHRC)’s right to formal registration, bringing an end to a decade-long legal battle. The initial dispute ignited when the Kenyan NGO Coordinating Board rejected NGLHRC’s registration application, alleging the promotion of same-sex behavior.
The recent ruling by the Supreme Court, issued following a review requested by opponents of the initial decision, has affirmed that denying registration solely based on sexual orientation is unconstitutional. Notably, three justices, including Deputy Chief Justice Philomena Mwilu, emphatically underscored the unjustifiability and unreasonableness of such a stance. They emphasized that preventing LGBTQ+ groups from registering amounts to unconstitutional discrimination.
President William Ruto of Kenya expressed his discontent with the Supreme Court’s decision favoring LGBTQ+ rights organizations. He reiterated the country’s unchanged position on same-sex marriage, stating that while the government respects the 3-2 decision of the Supreme Court, Kenyan culture and religion do not permit same-sex marriages. Ruto firmly declared that such unions would not be allowed in Kenya, even if they are recognized in other countries.
The legal dispute began when LGBTQ+ activist Erick Gitari sought to register an organization advocating for LGBTQ+ rights. The national board overseeing non-governmental organizations denied Gitari’s registration request, citing sections of the Penal Code criminalizing same-sex relationships. However, the Supreme Court deemed this decision discriminatory, invoking Section 27(4) of the Constitution, which prohibits discrimination on various grounds, including sexual orientation.
The court stressed that refusing registration essentially presumes guilt without any violation of the law, a position seen as regressive. They affirmed Gitari’s right to freedom of association while clarifying that all individuals, regardless of sexual orientation, would face sanctions for breaking existing laws, including those criminalizing same-sex relationships.
Furthermore, the court clarified that Article 27(4)’s use of the term “sex” encompasses sexual orientation, thus offering protection to individuals of all genders. However, two dissenting justices argued that organizations promoting actions contrary to the law should not be permitted to register. They highlighted that the Penal Code criminalizes same-sex sexual activities, imposing varying penalties for male and female homosexual relationships.
These dissenting justices also contended that the board’s rejection of proposed names by Mr. Gitari did not constitute discrimination based on sex or sexual orientation.