In 2012, Eric Gitari, the former Executive Director of NGLHRC, challenged the Kenya NGO Coordination Board’s refusal to allow him to apply for registration of an NGO under a name containing the words ‘gay’ or ‘lesbian’. The judges ruled in his favour at the High Court in 2015 and again at the Court of Appeal in 2019. An appeal was, consequently, lodged at the Supreme Court. In its verdict delivered by a five-judge bench, the court castigated the NGO’s coordination board for refusing to register four names for an LGBTQ organisation on the ground that same-sex marriage is outlawed in Kenya.[1] It would be unconstitutional to limit the right to associate through denial of registration of an association purely based on the sexual orientation of the applicants, the ruling reads.[2] The decision now offers LGBTQ individuals the right to request official recognition from the Non-Governmental Organizations Coordination Board.

The verdict of the Supreme Court has sparked a lot of debate and contention in the country, with different people having different opinions about the decision and the consequences thereafter. National Assembly Speaker Moses Wetangula has poked holes in the Supreme Court judgment that granted the lesbian, gay, bisexual, transgender and queer (LGBTQ) community the right to form a lobby group.[3]  The National Assembly Speaker faulted the Judiciary decision arguing that the nation is highly religious and it was up to the Supreme Court to defend the public morals.[4] The Attorney General joined the Speaker as he publicly protested the ruling to protect public morals. The government will challenge the Supreme Court ruling on the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community, Attorney General Justin Muturi has hinted.[5] He further stated that the decision to allow LGBTQ to register associations is against society’s values, and Kenyans should be engaged in public barazas to be in the position to give their opinion for consideration.[6]

Anti-LGBTQ Bill

Homa Bay Town Member of Parliament Peter Kaluma’s plan to draft a bill enhancing laws against the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community has elicited debate among Kenyans.[7] In a statement dated February 24, the lawmaker revealed that he had written to the Speaker of the National Assembly, Moses Wetangula, informing him of the plans to introduce the bill before the floor of the house in due course.[8] He indicated that he was proposing life imprisonment for those engaging in homosexuality. The proposed law that intends to further the provisions of article 45 (2) of the Constitution of Kenya and to protect the family will not only consolidate all existing laws relating to unnatural sexual acts but also increase the penalty for those convicted of engaging or promoting the acts to imprisonment for life or commensurate sentence.

This comes days after Ugandan MPs propose a new anti-gay Bill after conspiracy theories accuse shadowy international forces of promoting homosexuality.[9] MPs in Uganda have reintroduced a controversial anti-LGBTQ bill, with one describing homosexuality as a ‘cancer’, attracting strong condemnation from rights campaigners.[10]  Asuman Basalirwa, an MP, stated that homosexuality is a human wrong that offends the laws of Uganda and threatens the sanctity of the family, the safety of our children and the continuation of humanity through reproduction.[11] Western governments and aid agencies working in Uganda are routinely accused of ‘promoting homosexuality’ in East Africa. They have repeatedly defended the LGBTQ community from attacks related to their identity.[12]

The west as a ‘moral authority’

For decades, the United States and its Western allies spoke of human rights, democracy, self-determination, and other moral and legal terms they had crafted and propagated to show they cared. It was an effort to forget the atrocities they had historically committed and to focus on today and what they intended to do. The moral authority the West had granted itself to judge and lead the world was misplaced and guided by arrogance and self-glorification. The US wanted to forget about the massacre of the native Americans, the slavery of the Africans, the theft of the Mexican lands, the concentration camps of the Japanese and German US citizens, dropping the atomic bombs on Hiroshima and Nagasaki, killing hundreds of thousands of people, and many other atrocities carried out against different ethnicities during the Second World War and the previous two centuries.[13] Using their economic power and their propaganda tools, such as the CNNs, the Voice of Americas, the BBC, the Deutsche Welles and their globally distributed magazines and newspapers, the message was pumped into heads in the connected world that they had the absolute right to define what ‘values’ were relevant and what constituted ‘right’ and ‘wrong’.[14] 

Using their ‘humanitarian aid’ to force developing countries to cave into their demands for changes best suited to their interests became the norm. This is evident today, as the majority of  Kenyans do not believe it to be a coincidence that the Supreme Court ruling was made at the time the First Lady of the United States, Jill Biden, landed in the country with billions of humanitarian aid to mitigate the effects of drought in Kenya.

The West has changed a lot about our social and cultural lifestyle. Since just over a hundred years ago, when they introduced monogamy and capitalism, our lives have always mirrored the West. The food we eat, the clothes we wear, and the general lifestyle that we lead have been influenced in some capacity by the West. It is, therefore, important to realise that the West are not the moral authority it thinks itself to be. Just because they believe in a given idea does not make it the right way of life. It is important to acknowledge that we are African, and thus we have our customs, traditions, and values that we cherish and will not allow them to be eroded by western waves of social change. If holding on to our core identity means losing the western countries as allies, so be it. The financial aid that they bring is not worth losing our way of life over. We must understand that choices have prices on them, and should we choose to maintain our core identity, then there is no price that we will be unwilling to pay.

Freedom of association of the LGBTQ+ community

The Constitution provides for this freedom by stating that every person has the right to freedom of association, including the right to form, join or participate in any association.[15] This freedom is, however, not absolute. The Constitution provides for absolute rights, and the rest can be limited. Right or fundamental freedom in the Bill of Rights shall not be limited except by law and 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.[16] These factors include; the nature of the right or fundamental freedom, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.[17]

Apart from the Constitutional provisions, clear legislation outlaws homosexuality in Kenya. Any person who has carnal knowledge of any person against the order of nature, has carnal knowledge of an animal or 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.[18]

It, therefore, begs the question, how is it possible for there to be an association of something that is prohibited by law? It is unconscionable for the Supreme Court to disregard the laws that exist completely. It is ipso facto that by outlawing homosexuality, lawmakers were limiting the freedom of association for anything that fell under the banner of homosexuality.

The Constitution also provides that the general rules of international law shall form part of the law of Kenya.[19] Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.[20] It is important to acknowledge that the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interests.[21]Therefore, the freedom of association concerning LGBTQ+ in Kenya is limited. This is after considering that homosexuality is outlawed in Kenya, and in the general African social complex, it is unacceptable behaviour.

I also think that it is worth noting that it is hypocritical for people to criticize the decision of the Apex court from a religious or cultural point of view. There is a lot to like about African culture but there is a lot to dislike. Traditional practices such as Female Genital Mutilation (FGM) and child marriages are a few examples of those practices. Therefore, it is hypocritical to look at homosexuality as a way of life that does not conform to our African culture. I think this problem should be approached from a legal perspective because, even though it is not without its flaws, the law is the law. It is the standard to which all of us must conform with.

In conclusion, it is now becoming a norm to have LGTBQ individuals in society as opposed to the traditional male-female gender that dominates the sexual sphere. We cannot turn a blind eye to the unmistakable presence of the queer group. If we do, it will slowly be embraced by the coming generations. These members also have their constitutional rights as human beings and need to be treated with dignity, not to expose them or intrude on their privacy. Being a group member comes with challenges like rejection from friends and families, homophobia and stigmatisation. There is also the risk of physical attacks from people because of being homosexual. People must understand to address the issue by contacting the police. Choosing violence against our neighbours because of their sexual orientation is wrong

[1] Winnie Odhiambo, Supreme Court ruling on LGBTQ shocking, 2023, Nation, available at <https://nation.africa/kenya/blogs-opinion/letters/supreme-court-ruling-on-lgbtq-shocking-4137812> accessed on March 2, 2023.

[2] Ibid.

[3] Irene Mwangi, Wetangula says Supreme Court Ruling on LGBTQ will Lead to Unintended Consequences, 2023, Capital News, available at<https://www.capitalfm.co.ke/news/2023/02/wetangula-says-supreme-court-ruling-on-lgbtq-will-lead-to-unintended-cnintended-consequences/> accessed on March 2, 2023.

[4] Ibid.

[5] Anthony Mwangi and Brian Malila, State to Challenge court ruling on LGBTQ rights, 2023, People Daily, available at <https://www.pd.co.ke/news/state-to-challenge-court-ruling-on-lgbtq-rights-171183/> accessed on March 2, 2023

[6] Ibid.

[7] Washington Mito, MP Peter Kaluma’s Bill on LGBTQ Divides Kenyans, 2023, Kenyans, available at <https://www.kenyans.co.ke/news/86135-peter-kalumas-bill-lgbtq-divides-kenyans> accessed on March 2, 2023.

[8] Ibid.

[9] Uganda sets plans for new anti-gay law, 2023, available at <https://www.france24.com/en/live-news/20230228-uganda-sets-plans-for-new-anti-gay-law > accessed on March 2, 2023.

[10] Samuel Okiror, Uganda MPs revive the hardline anti-LGBTQ bill, calling homosexuality a ‘cancer’, 2023, Guardian, available at <https://www.theguardian.com/global-development/2023/mar/01/uganda-mps-hardline-anti-lgbtq-bill> accessed on March 2, 2023.

[11] Ibid.

[12] Ibid.

[13] Rafaat Ludin, The West’s Lost Moral Authority – What is Next for America and the Western World?2023, available at< https://www.linkedin.com/pulse/wests-lost-moral-authority-what-next-america-western-rafaat-ludin> accessed on March 2, 2023.

[14] Ibid.

[15] Article 36, Constitution of Kenya 2010.

[16] Ibid, Article 24.

[17] Ibid.

[18] Section 162, Penal Code CAP 63.

[19] Article 2(5), Constitution of Kenya 2010.

[20] Ibid, Article 2(6).

[21] Article 27, African Charter of Human and Peoples Rights (ACHPR).