Regarding the debate, both scholars shared distinct perspectives in terms of law enforcing morality. Professor Hart was of the view that law and morality are two distinct and should be treated as such. Additionally, he argued that the law has no authority over morality and should not be a tool used to enforce it especially if these indecent acts are done in private and do not harm others.[4] On the other hand, Devlin averred that the two disciplines are inseparable. One depends on the other in order for human behavior to be guided or rather controlled by society at large.[5] Further, according to Devlin, the authoritative institution of a given society is burdened with the duty of upholding sound morals and if not, at least combat indecent acts committed by its members.[6]
In present times, this argument found its way into the recently presided cases on registration of a non-governmental organization which sought to be registered in a name that advocates for the LGBTQI community in Kenya.[7] Prior to the case, the NGO Coordination Board refused to register the NGO based on the fact that the people it sought to champion violate sections 162, 163 and 165 of the Penal Code which criminalises same-sex relationships. Despite its constant request for reconsideration, the Board denied the said NGO registration. This resulted to the matter being lodged in court.[8] The Hart – Devlin debate emerged during the court proceedings which resulted in a division between the judges in the Apex Court in the ratio of 3:2. The former were in support of Hart’s arguments while the latter leaned towards Lord Devlin’s perspective.[9] The Majority team, comprised Hon. Lady Justice Philomena Mwilu, Hon. Justice Dr. Smokin Wanjala, and Hon. Lady Njoki Susanna Ndung’u and the dissenting team comprising of, Hon. Justice Mohamed Khadhar Ibrahim and Hon. Justice William Ouko.
Based on the aforementioned, this paper will seek to identify the various elements primarily at the Supreme Court level, which are consistent with either of Professor Hart’s Arguments or Lord Devlin’s in the advancement of jurisprudential analysis of over half a century.
- Hart’s arguments
- Privatization of morality
In recognition of both John Stewart Mills and the Wolfenden Committee Report, Professor Hart reiterates the Harm Principle which was advanced by Mills in that society, through the law should sanction acts that are considered as harmful to the society.[10] Hence, as long as said acts are done in private, they pose no harm to the public and shouldn’t be criminalised. For example, as long as homosexuality or even drug abuse is not harmful to society but to the individual involved.[11] One should not be confined to the actions that are only approved by others and the law ought to protect that individual’s right as long as they do in the comfort of their privacy. People should have the right to express their true selves through the right of choice as freedom is a basic human value.[12]
That being said, the trial court agreed with the Court of Appeal’s standing and observed that the right to association espoused in the Constitution[13] was infringed by the appellant to the 1st respondent. The justification was that the appellant lacked the authority vested upon it by its enabling legislation in limiting said right according to Article 24 read together with Article 27.[14] This validates the basic human value element as the Court stated that the Penal Code does not criminalize one’s sexual orientation but the act itself of having and permitting carnal knowledge.[15]
As the Amicus Curiae Katiba Institute submitted, Article 24(3) states that the person seeking to justify a particular limitation shall demonstrate to the court that the requirements of limitation of rights and fundamental freedoms have been satisfied contrary to which the Appellant did not meet. It was the majority’s view, therefore, that the 1st Respondent has the freedom to form associations of their own kind provided in Article 36.[16]
- Criminal nature of homosexuality
Hart was in support of the Wolfenden Committee Report in legalizing homosexuality and prostitution based on the teachings of Mill. Through inference of the harm’s principle, limits should only be imposed on actions that only harm others. He furthers this argument by stating that there should be an established difference between a harm and an offence as one is not synonymous with the other. The LGBTQ do not cause harm to people therefore, criminalizing LGBTQI by enforcing a “moral code” was unnecessary, undesirable and ethically wrong as this would interfere with individual liberty and personal autonomy.[17]
The Court fostered Professor Hart’s assertion by declaring that sections 162, 163 and 165 of the Penal Code do not criminalize homosexuality in terms of sexual orientation. On the contrary, these provisions stipulate against the acts that constitute unnatural liaisons.[18] An assumption that lacked any shred of evidence was made by the Appellant through mere assumptions that people who profess to the LGBTQI community are criminals or that they are the only individuals capable of committing such “unnatural offences”. In fact, the Court went further by stating that extensive research indicates that even heterosexuals commit such offence more often than not![19]
- The distinction between law and morality
Professor firmly believes that there is a clear difference between the two disciplines. This is drawn from his argument of a variation between moralism and paternalism in that the latter involves a form of interference of an individual against their will with the aim of protecting them from harm.[20] As a form of reinforcement, Lord Slynn’s dissenting in the case of R v Brown (1994).[21] The honourable judge was conflicted with the idea of two young men fighting in a private place, where one may leave with a bleeding nose is deemed illegal, while a boxing match where either heavyweight fighter knocks out their opponent possibly causing serious damage is legal.[22]
In the context of the NGO case, the divide between law and morality established by barring law from the morality of the LGBTQI members would identify as such but do not contravene any existing laws including sections 162, 163 and 165 of the Penal Code. In the analysis and determination of issues 2 and 3 by the Supreme Court, the majority ruled that to allow discrimination based on sexual orientation would be to counter the constitutional principles thereby discriminating against LGBTQI. Furthermore, sexual orientation is not among the prohibited grounds under Article 27(4). It was ruled that if the drafters of the Constitution wanted to include it, they would have done so explicitly.[23]
- Devlin’s arguments
- Moral intervention by the law
Scholars like Muhammad Munir indicate that Lord Devlin appealed to a society with a “moral fabric”.[24] Ronald Dworkin calls it “community morality counts” and agrees with Devlin on that particular notion but however disagrees with him in terms of the conception of morality.[25] Ideally, in order to maintain the status quo of society as a whole, the law, specifically Criminal Law, must respect and uphold moral standards.[26] According to Devlin, morals are the backbone of a society and hold all the other elements together.[27]
Pursuant to the Non-Governmental Organizations Coordination Act,[28] the Board may refuse to grant registration to an NGO if it is satisfied that its proposed activities or procedures are not in the national interest. Regulation 8(3)(b)(ii) of the NGOs Regulations stipulates that such name is not approved on the grounds that such name is in the opinion of the director repugnant to or inconsistent with any law or is otherwise undesirable. As an inference, Justice Ouko in his dissenting opinion underscored that the appellant had administrative discretion to grant or deny an application for reservation of name or registration of a name of the proposed association of the LGBTQI.[29] Furthermore, Judge Muhammed stated that Democratic societies are governed by laws. Section 14 of the NGO Coordination Act allowed the Appellant to refuse to register any association if it does not meet the specified regulations.[30] Both judges’ dissent contributes to the variable of the law enforcing morality in society and sanctioning any actions deemed to be immoral.
- Joint protection of the people and society
Based on the utilitarian principle fostered by Jeremy Bentham, the greater society also requires protection just as its members individually. A moral reflection on this principle by Devlin illuminates that the law then ought to protect both society and its people.[31] He reasons further that for a society to thrive there has to be political stability and moral ideologies which should be established and maintained by the government.
Through their dissenting opinions, the two judges disagreed with the Supreme Court judgment since the Appellant had the said discretion to decline registration of the LGBTQI which promoted homosexuality contrary to sections 162, 163 and 165 of the Penal Code. Relying on Lindon Otieno’s Affidavit, although the Appellant was committed and willing to observe and respect the 1st respondent’s right to association, the Appellant was not ready to review the name and objectives of the proposed organization so as not to offend the provisions of the law.[32] Justice Ouko observed the distinctiveness of a name stating that the only obstacle between the proposed organization and its registration were the two words, gay and lesbian. The 1st respondent was resolute that the words were the identifying mark of the proposed organization and could not be abandoned. The Appellant was not a robot bound to accept willy-nilly the name(s) suggested by the 1st Respondent.[33] Though unrecognized in this particular case, the law can be utilized in protecting society as it protects individual members of that society just as the NGO coordination board sought to protect the society through the law.
- Enforcement of morality by law
A form of the superiority of the law over morality has to be evident in order for the former to facilitate the implementation of the latter. Also, the law must be founded on societal morality in order for a society’s existence to be realized as perpetual.[34] It is for this reason that if one violates public morality he or she has to be punished as his or her immoral act may influence other members of society. Therefore, immoral acts like homosexuality, prostitution or fornication should be banned by law hence enforcement of morality.
The court has the onus of, inter alia, interpreting the law and enforcing morality. The 1st and 2nd respondents argued that the High Court assumed jurisdiction it did not have over the matter. Justice Mohammed in agreement with Justice Ouko and the majority in the case of Albert Chaurembo case[35] which discussed the importance of the principle of exhaustion. He stated that the case raised issues of constitutional interpretation and application, therefore, the administrative forum did not have jurisdiction to entertain the matter. Based on that, the High Court could therefore not shut its door to the Appellants for failure to exhaust an internal remedy that did not apply to their circumstances. Therefore, the court interpreted the law provided to enforce morality concerning the LGBTQI.
Conclusion
With reference to the arguments made above it is clear that the Hart–Devlin debate has not completed its journey, especially with societal dynamics. Just as I had mentioned above, this debate has been analysed extensively, however, not exhaustively. This can be construed as said debate might also emerge later on in future endeavors depending on the context and the challenge posed to legal scholars and practitioners.
Evidently, none, including both Hart and Devlin neither has nor will ever grasp the extent to which this discussion can reach. Richard Posner suggested the concept of moral neutrality in that a set of moral principles are adhered to as opposed to others this being in complement of Lord Devlin’s line of thought which also share my sentiment.[36]
The author is an undergraduate student at Kabarak University whose research interest includes constitutional law, human rights and international law. The author is also the editor in charge of peer review at the Kabarak Law Review and an intern at the Kabarak University Press.
[1] Gregory Bassham, ‘Legislating Morality: Scoring the Hart-Devlin Debate after Fifty Years’ 25(2) An International Journal on Jurisprudence and Philosophy of Law (2012) 117.
[2] Report of the Committee on Homosexual Offences and Prostitution, 29 October 1957, HL/PO/JO/10/11/579/1527.
[3] Report of the Committee on Homosexual Offences and Prostitution, 29 October 1957, HL/PO/JO/10/11/579/1527, para 62.
[4] Gregory Bassham, ‘Legislating Morality: Scoring the Hart-Devlin Debate after Fifty Years’ 25(2) An International Journal on Jurisprudence and Philosophy of Law (2012) 118; Dawid Bunikowski, ‘Legal protection of the value of public morality: The Hart – Devlin debate’ SSRN Electronic Journal (2015) 6.
[5] Gregory Bassham, ‘Legislating Morality: Scoring the Hart-Devlin Debate after Fifty Years’ 25(2) An International Journal on Jurisprudence and Philosophy of Law (2012) 118.
[6] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 4.
[7] EG v Non- Governmental Organisations Co-ordination Board & 4 others, Petition No. 440of 2013, Ruling of the High Court at Nairobi [2015] eKLR; Non-Governmental Organizations Co-Ordination Board v EG & 5 others, Civil Appeal No. 145 of 2015, Ruling of the Court of Appeal [2019] eKLR; NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR).
[8] EG v Non- Governmental Organisations Co-ordination Board & 4 others, Petition No. 440of 2013, Ruling of the High Court at Nairobi [2015] eKLR, paras 1, 2 & 3.
[9] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 1.
[10] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 2.
[11] Dawid Bunikowski, ‘Legal protection of the value of public morality: The Hart – Devlin debate’ SSRN Electronic Journal (2015) 7.
[12] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 8 & 9.
[13] Constitution of Kenya (2010), article 36.
[14] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 192.
[15] Penal Code CAP 63, section 162; NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 233.
[16] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), paras 39, 42 & 59.
[17] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 8.
[18] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 60.
[19] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 60; Augustine Edobor Arimoro, ‘Interrogating the criminalisation of same‑sex sexual activity: A study of Commonwealth Africa’ 42 Liverpool Law Review (2021) 391.
[20] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 8; Peter Cane, ‘Taking law seriously: Starting point of the Hart/Devlin Debate’ 10(2) The Journal of Ethics (2006) 24.
[21] R v Brown [1994] 1 AC 212 [1993] 2 All ER 75.
[22] [22] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 11.
[23] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 221.
[24] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 4.
[25] Ronald Dworkin, Taking rights seriously, Duckworth, 1977.
[26] Muhammad Munir, ‘The Hart – Devlin Debate: Should the law be used to enforce morality?’ SSRN Electronic Journal (2022) 4.
[27] Patrick Devlin, The Enforcement of Morals, Oxford University Press, Oxford, 1965.
[28] Non-Governmental Organizations Coordination Act No. 19 of 1990, section 14.
[29] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 175.
[30] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 99.
[31] Peter Cane, ‘Taking law seriously: Starting point of the Hart/Devlin Debate’ 10(2) The Journal of Ethics (2006) 22; Patrick Devlin, The Enforcement of Morals, 22.
[32] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 192.
[33] NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para193 & 194.
[34] Patrick Devlin, The Enforcement of Morals, 24.
[35]Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others, Petition No.3 of 2016, Ruling of the Supreme Court [2019] eKLR in NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae), Petition 16 of 2019, Ruling of the Supreme Court [2023] KESC 17 (KLR), para 91.
[36] Richard A Posner, Sex and Reason, Harvard University Press, Cambridge, 1992.
