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The Supreme Court of Kenya has Friday morning by a majority of 3:2 determined that the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community in Kenya have a constitutional right of association. The five judge bench comprising of Kenya's Deputy Chief Justice Philomena Mwilu together with Supreme Court Justices Smokin Wanjala, Njoki Ndungu (in the majority) and Mohamed Ibrahim and William Ouko (in the minority); rendered itself on the matter in its judgement dated and delivered at Nairobi on 24th of February, 2023.
The epicenter of this case was the refusal by the Non-Governmental Organization (NGO) Co-ordination Board in the year 2015 to reserve proposed names by one Mr. Eric Gitari (First Respondent) for an NGO (Proposed NGO) that would champion the rights of LGBTQ persons in Kenya . The proposed names were - 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. By a letter dated 25th March 2015, the Executive Director of the NGO Co-ordination Board declined to approve any of the proposed names urging that Sections 162, 163 and 165 of the Penal Code criminalizes same-sex liaisons. Aggrieved by the NGO Co-ordination Board's decision, Mr. Gitari filed Petition No. 440 of 2013 at the High Court.
Proceedings before the High Court
At the High Court (HC), Mr. Gitari contended that the decision by the NGO Co-ordination Board not only contravened Article 20 (2), 27 (4), 28, 31 (3) and 36 of the Constitution but also those of the Non-Governmental Organizations Co-ordination Act (the NGO Coordination Act).
The HC bench comprising of Lenaola J, Ngugi J, and Odunga J delineated two primary issues for determination thus - (i) whether LGBTIQ have a right to form associations in accordance with the law; and (ii) if the answer is in the affirmative, whether the decision of the NGO Co-ordination Board not to allow the registration of the Proposed NGO because of the choice of name is a violation of the rights of Mr. Gitari under Article 36 and 27 of the Constitution.
By its judgment rendered on 24th April 2015, the HC found merit in the petition and declared that the NGO Co-ordination Board had contravened the Constitution which guarantees Mr. Gitari the right to freedom of association.
Dissatisfied with the decision of the HC, the NGO Co-ordination Board lodged an appeal at the Court of Appeal in Nairobi Civil Appeal No. 145 of 2015, challenging the whole judgment and decree of the HC.
Proceedings before the Court of Appeal
The NGO Co-ordination Board's grounds of appeal at the Court of Appeal (CoA) were that the learned judges of the HC erred in law and fact inter alia - (i) By identifying lesbian, gay, bisexual, transgender and queer as innate attributes of various persons without any or any sufficient evidence in support, and by failing to recognize that these attributes were the consequences of behavioral traits which the society has a right and duty to regulate for the sake of the common good; (ii) In finding that the right to freedom of association extended to the Proposed NGO by Mr. Gitari; and (iii) By failing to uphold the provisions of the Penal Code that outlaw homosexual behavior, as well as any aiding, abetting, counselling, procuring and other related and inchoate crimes.
Having considered the issues for determination, the CoA on 22nd March 2019, by a majority of 3:2, dismissed the appeal, affirming the judgment of the HC.
Dissatisfied with the CoA decision the NGO Co-ordination Board filed an appeal before the Supreme Court.
At the Supreme Court
The Supreme Court (SC) seized of the matter delineated three issues for determination two of which are discussed hereunder thus -
Whether the decision of the NGO Co-ordination Board violated Article 36 of the Constitution; and
Whether the decision of the NGO Co-ordination Board was discriminatory and contravened Article 27 of the Constitution.
Amicus Curiae Submissions - Katiba Institute
Granted audience by SC, Katiba Institute as amicus curiae urged that the denial of registration of the Proposed NGO by the NGO Co-ordination Board did not meet the requirements of Article 24 of the Constitution, and that Article 24 (3) the Constitution places the onus on the person seeking to justify a limitation to demonstrate grounds justifying the limitation of a right or fundamental freedom; and that the grounds must be premised on human dignity, equality, and freedom.
In that regard, the amicus curiae urged the SC to establish whether this onus has been met by the NGO Co-ordination Board.
Whether the decision of the NGO Co-ordination Board violated Article 36 of the Constitution
As regards this issue, the NGO Co-ordination Board argued that in refusing to reserve the names for the Proposed NGO, it had formed the opinion that the names and the objects offended public policy as their registration would stand in conflict with Sections 162, 163 and 165 of the Penal Code which outlaw homosexual liaisons. Furthermore the NGO Co-ordination Board faulted the HC and CoA for failing to appreciate the proper context under which its reason for rejecting the names proposed by Mr. Gitari fell. It argued that the HC and the CoA disregarded majority interests, the moral principle that is enshrined in the Constitution.
Mr. Gitari on his part urged that Article 36 of the Constitution expressly provides for the registration of an association of any kind and that the only group limitations on the freedom of association envisioned by the Constitution are restricted to persons serving in the Kenya Defence Forces (KDF) or the National Police Service (NPS) in accordance with Article 24 (5) (b) of the Constitution. Mr. Gitari further submitted that if the drafters of the Constitution intended to restrict the freedom of association of LGBTQ persons or any other group of persons, they would have expressly included that group in Article 24(5) of the Constitution.
Article 36 of the Constitution states -
(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that —
(a) registration may not be withheld or withdrawn unreasonably.
(b) there shall be a right to have a fair hearing before a registration is cancelled
On this issue, the SC first noted that the right to freedom of association is also recognized in international and regional human rights instruments which Kenya has ratified. The right to freedom of association provided for under Article 22 (1) of the International Covenant of Civil and Political Rights (ICCPR) thus -
Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
Similarly, Article 10 (1) of the African Charter on Human and Peoples Rights provides inter alia -
Every individual shall have the right to free association provides he abides by the law.
The SC further noted that the right to freedom of association cannot be limited unless as provided for under the Constitution. In that regard, it took cognizance of Article 24 (1) of the Constitution which provides as follows -
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
The SC then asked itself whether the Penal Code provided for the limitation of the right to freedom of association of LGBTQ. Sections 162, 163 and 165 of the Penal Code upon which the Director’s decision was premised on provides as follows -
(162) Any person who—
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years:
Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if—
(i) the offence was committed without the consent of the person who was carnally known; or
(ii) the offence was committed with that person’s consent, but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act
(163) Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.
(165) Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
With these provisions in mind, the SC observed that there was no evidence placed before the NGO Co-ordination Board to demonstrate that persons who profess to be LGBTQ are criminals or that it is only they who are capable of committing the offence of “unnatural acts”. That the said sections of the Penal Code do not distinguish between heterosexual or homosexual offenders. The sections do not limit the perpetrators of such acts to persons who are LGBTQ. The phrase “any person”, connote a potential offender under those sections who may very well be heterosexual, homosexual, intersex or otherwise.
It was the finding of the SC that the aforementioned sections of the Penal Code do not, pursuant to the provisions of Article 24 of the Constitution, express the intention to limit LGBTQ’s right to freedom of association. Likewise, the sections do not specify the nature and extent of the limitation of the freedom of association, if any. The SC found that Mr. Gitari's intention was to register an organization to champion for the rights of LGBTQ, and this has no correlation whatsoever with the offences articulated under Sections 162, 163 and 165 of the Penal Code.
It was also the finding of the SC that 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. As such the SC agreed with the reasoning of the HC that just like everyone else, LGBTQ have a right to freedom of association which includes the right to form an association of any kind. The SC however noted 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. It follows then that by refusing to register the Proposed NGO, the persons were convicted before they contravened the law which action is retrogressive.
The SC therefore, affirmed the decision of the CoA that the NGO Co-ordination Board violated Mr. Gitari's right to freedom of association under Article 36 of the Constitution.
Whether the decision of the NGO Co-ordination Board was discriminatory and contravened Article 27 of the Constitution
The NGO Co-ordination Board argued that sexual orientation is not among the prohibited grounds contemplated under Article 27 (4) of the Constitution. Further, it faulted the majority decision of the CoA which affirmed the HC decision which interpreted the term ‘including’ under Article 27 (4) of the Constitution to give room for including sexual orientation in the non-discrimination clause. Article 27 (4) of the Constitution provides as follows -
The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (Emphasis Added)
Guided by a host of regional and international legal instruments, comparative analysis, and caselaw, the SC formed the opinion that the use of the word “sex” under Article 27 (4) does not connote the act of sex per se but refers to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further, the SC found that the word “including” under the same article is not exhaustive, but only illustrative and would also comprise “freedom from discrimination based on a person’s sexual orientation.”
The SC therefore, agreed with the finding of the HC to wit, an interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination. To put it another way, to allow discrimination based on sexual orientation would be counter to these constitutional principles.
It had to follow thus, the NGO Co-ordination Board's action of refusing to reserve the name of the Proposed NGO on the ground that “Sections 162, 163 and 165 of the Penal Code criminalizes Gay and Lesbian liaisons” was discriminatory in view of Section 27 (4) of the Constitution. Consequently, the SC found that Mr. Gitari's right not to be discriminated directly or indirectly based on his sexual orientation was violated by the NGO Co-ordination Board.
The upshot of these findings were that the NGO Co-ordination Board's appeal was dismissed with costs awarded to Mr Gitari.
THE END
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