Defending the wretched of the earth; Supreme CourtPetition no. 16 of 2019; Non-Governmental Organisations Co-ordination Board vs Eric Gitari & Others

On 24th February, 2023, the Supreme Court of Kenya by a majority affirmed that (LGBTQI persons) have the right to register an association as envisioned under Article 36 of the Constitution of Kenya. The Court further affirmed that Article 27 covers sexual orientation as one of the protected grounds against sexual orientation.  Preceding the Supreme Court decision were the trial proceedings in the High Court and the appeal in Kenya’s Court of Appeal.

The procedural history of the case

High Court

 Eric Gitari vs Non- Governmental Organisations Co-ordination Board & 4 Others; Petition No. 440 of 2013

Aggrieved by the administrative decision of the NGO Coordination Board failing to reserve and register an NGO for advancing human rights by protecting gay and lesbian people from human rights violations and violence, Eric Gitari petitioned the High Court in 2013 to determine whether a gay or lesbian was a person under the meaning of Article 36 of the Constitution of Kenya which protected a person from discrimination and whether his freedom of association had been infringed.

Under Article 36 (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”.  In rejecting the proposed NGO names, the NGO Coordination Board relied on the Penal Code, sections 162, 163, and 165, which criminalized same-sex relations. The Board advised the petitioner that it was guided by regulation 8(3)(b) of the NGO Regulations of 1992, which provided for discretionary power to reject proposed names if “such name is in the opinion of the director repugnant to or inconsistent with any law or is otherwise undesirable”.

Additionally, the Board added that it had consistently rejected attempts to register associations for the gay and lesbian communities because such associations would be “furthering criminality and immoral affairs”. The petitioner, through his counsel, protested the proposed association rather than advancing criminal conduct would be pushing for the equality of LGBTQI persons in Kenya.

The High Court distinguished the Board’s refusal of registering an organization bearing the words gay or lesbian from the Board’s contention that the petitioner can reserve other names for the proposed association provided they do not contain the words gay or lesbian. Per the Court, the Board had discretionary powers to reject proposed names. However, seeing that it was largely opposed to including the words gay or lesbian in an NGO’s name, it followed that the Board had contravened the petitioner’s constitutional freedom of association. More importantly, the Court declared that the constitutional words “Every person,” as contained in Article 36, extended to all people irrespective of their sexual orientation.

The Court took judicial notice of the penal provisions touching on homosexuality and homosexual conduct. It directed that the Penal Code does not criminalize sexual orientation or the status of being homosexual. Instead, it criminalizes sexual acts that contravene the order of nature. It directed that the Penal Code does not criminalize sexual orientation or the status of being homosexual. Instead, it criminalizes sexual acts that contravene the order of nature.

Per the Court, the association’s objects of promoting equality were within the law and consistent with Article 27, which guarantees constitutional equality to all people. Here, the association was not furthering or promoting homosexual conduct but protecting LGBTQI from human rights abuses.

Finally, the Board had infringed on the association rights of people as it did not have the power to compel anyone, including transgender or intersex persons, from joining or leaving an association of any kind.

Court of Appeal

Non- Governmental Organisations Co-ordination Board & 4 Others vs Eric Gitari; Civil Appeal No. 145 of 2015

Upon appeal by the Board, the Court of Appeal affirmed the High Court’s decision.

Unlike the 3-judge bench, which had issued a unanimous decision, the 5-judge Appellate bench had a minority of 2. Per the minority, Article 36’s freedom of association was not absolute and was subject to limitation under Article 24(1) of the Constitution.

The dissenting judges contended that Article 27(4) prohibited discrimination on multiple grounds, including a person’s sex (gender), but not based on sexual orientation. The minority opined that the framers of the Constitution had deliberately excluded sexual orientation because they did not intend to recognize the LGBTQI community. Accordingly, the Board had lawfully rejected the proposed NGO’s registration because the Penal Code’s criminalization of homosexual sexual relations provided a reasonable ground to limit the freedom of association of gays and lesbians.

Supreme Court

As two of its justices, Lenaola, J. and Koome, J., had ruled for the petitioner in the High Court and Court of Appeal, respectively, the Supreme Court constituted a 5-judge bench to determine the matter that was filed by the Non- Governmental Organisations Co-ordination Board as against the Court of Appeal’s decision.

As mentioned in the Court of Appeal, the main contention lay in whether the prohibition against sex-based discrimination includes a prohibition based on sexual orientation and whether the non-exhaustive grounds for discrimination could extend to sexual orientation. The majority affirmed the High Court’s reasoning and upheld the decision from the lower courts.

The dissenting judges believed that the freedom of association is not absolute. Seeing that the Penal Code criminalizes sexual relations among homosexuals as they are deemed to be against the order of nature, the dissenting judges contended that permitting the association’s registration was equivalent to promoting homosexual conduct. This approach is wrong as it conflates the advancement of equality of rights and protection of LGBTQI persons from violation of their rights which are the objects of the proposed NGO, with the promotion of LGBTQI sexual liaisons.

The dissenting opinion of Ouko, J in the Supreme Court has particular relevance to the interpretation of limitation in the broader context of the Bill of Rights. Justice Ouko isolated the phrase “association of any kind” to argue that the Constitution and the people of Kenya did not intend to legitimize any and all associations whose operations or objects might be inconsistent with the Constitution or contrary to the law. Accordingly, the Justice directed that the law should not allow people to join or identify with an association whose objects offend the beliefs of other communities, religions, ethnicities, or races. Still, the Justice opined that associations should not adopt names that are considered derogatory, offensive, or hateful.

Given that the Supreme Court was seized on the legal question of whether the Board had lawfully rejected the proposed names, the minority’s opinion should have deemed the question placed before it as one in a broader reference of equality and equal treatment of all persons under the law than a narrower frame of appropriateness and sensibility to religion and culture. In the broader human rights frame, the right to non-discrimination as it applies to freedom of association should not be abridged by religious or cultural sensibilities, provided that the association’s objects are consistent with the Constitution.

Indeed, this broader frame of reference undergirds the majority’s decision in paragraph 79. Instead of restricting Article 27(4) of non-discrimination based on sex to sex, the majority took a purposive approach. The majority contended that Article 27’s non-discrimination clause contains the word “including.” Accordingly, the word “including” means that the grounds for non-discrimination in the Constitution are not exhaustive but illustrative. As such, the Constitutional express provision against non-discrimination based on sex does not exclude sexual orientation. Rather, under international law and judicial interpretation of the meaning of sex in other jurisdictions, sex refers to sexual orientation.[1] Any attempts to deny equal treatment or protection under the law based on sexual orientation would undoubtedly offend established constitutional principles of inviolable human dignity, equality, human rights, and non-discrimination.

 What does the Supreme Court’s decision mean for sex minorities in Kenya?

Though not bound by its prior decisions, the Supreme Court can only vacate or review its decisions after a review petition is filed or it handles another similar matter. In the present case, there has been uproar from a section of the public, legislators, and the presidency expressing dissatisfaction with the ruling. Nonetheless, until the current Supreme Court decision is determined to be bad law worth departing from, the judgment is a huge win for LGBTQI persons as they push for equal protection and treatment under the Constitution and other laws. In addition, it will facilitate the pursuit of rights like the right to enjoy a family life. Family life can be enjoyed without sexual relations as it extends to processes like adoptive rights, which same-sex people do not enjoy in Kenya.

Analogical reasoning has been applied, arguing that association of the LGBTQI persons opens the doors for prohibited groups or groups performing illegalities to seek legal recognition. On the face, this seems a pretty strong and convincing argument. Yet, it is highly misleading since it deliberately paints equality and non-discrimination constitutional rights that LGBTQI persons seek as criminal and illegal. There is a perceptible difference between LGBTQI persons associating to advance their constitutional rights and outlawed groups like terrorists or criminal outfits associating to advance their ideological interests or objects. From a human rights law perspective, protecting the rights of LGBTQI persons affirms their inherent dignity and expands their capacity to pursue their self-advancement. Conversely, recognizing illegal groups would endanger human security or national interests, which remain unaffected by the recognition of associations for LGBTQI persons. If any of the seemingly illegal groups were formed to further the protection of those persons from human rights violation like the right to due process of law, then there is no reason why such groups should not be given legal recognition.

Nonetheless, there is an assumption among leaders of majority groups like Pentecostal faith-based groups that the Supreme Court can be pressured to depart from its ruling. The same has been bolstered by the country’s Attorney General, who has publicly announced that the government will seek a review of the matter. The “review” case for reversing the finding for constitutional freedom of association for gays and lesbians is unlikely to succeed or return a contrary finding. For the Supreme Court to review its decision, several grounds must be proved. Among these include a discovery that the decision was obtained fraudulently or deceitfully, that the Court was incompetent, that the Court relied on under a mistaken belief, and that the Court relied on repealed law. None of these circumstances occurred when the Supreme Court entertained the matter and issued its judgment.

The alternative is for the government, through the Attorney General, to request an advisory opinion on the interpretation of Article 36 and its limitations. However, advisory opinions do not amount to rulings and cannot alter an existing precedent. Instead, they only guide how the Constitution should be interpreted. Still, this might be self-defeating because the Supreme Court is not bound by its prior positions on interpreting the law.

There has also been a clamor by a section of religious leaders to initiate a constitutional amendment initiative that will entrench the criminalization of homosexuality and homosexual relations and prohibit the recognition of the LBGTQI community. Furthermore, in what can be considered intimidation of judges and infringement of their independence, some religious leaders have proposed to initiate the resignation of the Supreme Court justices who issued the majority decision. The same has been taken up by the country’s president, who jokingly said in Swahili that Kenya under his rule could not allow men to chase men as women enter into sexual relations with other women as this goes against the culture of Kenya’s main tribes and is inconsistent with the religious teachings of the country’s major religions of Christianity and Islam.

While the disapproval of the ruling is mainly based on religious beliefs the majority professes, human rights are secular, and they should not be limited by religious thinking or leanings. In the words of the High Court, religious beliefs are not a justification for limiting human rights as this offends the Constitution to the extent that the freedom of religion includes the right not to profess religious beliefs and freedom from being compelled to practice or associate any form of religion. Accordingly, the freedom of association might not exist in a vacuum. Still, it behooves religious leaders and faithful to reasonably profess their beliefs without violating the freedoms or rights of minorities. Put differently, the constitutional right to profess religious beliefs also protects minorities who do not associate or agree with dominant values informed by any religion.

Conclusion

It remains to be seen how the government and religious groups opposed to the judgment will respond. Similarly, it is interesting how the Courts will determine a pending matter on the constitutionality of section 162 of the Penal Code, which criminalized homosexual relations. As the Supreme Court has original jurisdiction to issue advisory opinions, it remains to be seen how the government will canvass its request for an advisory opinion on the nature and scope of freedom of association as it pertains to the potential conflict between lawful objects touching on the Bill of Rights of controversial associations. This is not to say an advisory opinion will allow the Supreme Court to bend to political and majoritarian interests. Instead, rendering the advisory opinion might be a welcome exercise of the Supreme Court’s power regarding matters of great public interest. Overall, the Supreme Court’s judgment and reasoning therein will have profound impacts on how LGBTQI associations advocate against the removal of LGBTQI persons from substantive equality when it comes to constitutional rights like the right to family life.

Christabel M. Eboso is an Advocate of the High of Kenya, currently pursuing her PhD at the University of Kent, Canterbury; a fellow at the Institute of Global Policy and Law, Harvard Law School, class of 2023 and a Tutorial Fellow at the University of Embu.


[1] See International Covenant on Civil and Political Rights (ICCPR), Articles 2 and 26; African Charter on Human and People’s Rights, Article 2; The UK Equality Act 2010, Section 12; Toonen v Australia, Communication No. 488/1992,

U.N. Doc CCPR/C/50/D/488/1992 (1994)

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