Supreme Court of Kenya: While deciding a number of issues which revolved around the question of whether refusal to register an organization of persons who fall within the LGBTQ+, contravenes the fundamental rights and freedoms of association guaranteed in the Constitution of Kenya and whether the rights to freedom of association and freedom from discrimination of those persons seeking to be registered, were infringed upon; the Bench of P. M. Mwilu; DCJ., and M.K. Ibrahim, S.C. Wanjala, Njoki Ndungu, & William Ouko, JJ., with a ratio of 3:2, held that it would be unconstitutional to limit the right to form association purely on the basis of the sexual orientation of the applicants. Affirming the reasoning of the courts below, the Kenyan Supreme Court held that LGBTQ+ community have the Right to Freedom of Association, which includes the right to form an association of any kind. “Given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not”.
Background and Legal Trajectory
The matter emerged from a letter dated 25-03-2015 refusing to reserve any of the 1st respondent’s (Eric Gitari) proposed names to register an NGO seeking to champion the rights of Lesbian, Gay, Bisexual, Transgender, Queer or Questioning (LGBTIQ) 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
The Executive Director of NGOs Coordination Board (appellant) declined to approve the proposed names on the grounds that Sections 162, 163 and 165 of Kenya’s Penal Code criminalizes gay and lesbian liaisons.
Aggrieved by the appellant’s decision, the respondent filed petition alleging contravention of the provisions of Articles 20(2), 31(3), 27(4), 28 and 36 of the Constitution, but also those of the Non-Governmental Organizations Coordination Act. The High Court found that the appellant’s action constituted an infringement of the 1st respondent’s right to freedom of association. Finally, the High Court declared that the words ‘every person’ in Art. 36 of the Kenyan Constitution includes all persons living within the Republic of Kenya irrespective their sexual orientation.
Subsequently, the issue reached the Court of Appeal, Nairobi. However, by a majority of 3-2, the appeal was dismissed, and the judgment of the High Court was affirmed.
Issues for Consideration by the Supreme Court
The Supreme Court at the very outset clarified that, the present matter is not about the legalization or decriminalization of LBGTQ+, or the morality of same-sex marriage.
The Court stated that the core issue for determination between the parties herein is whether the decision of the Executive Director of the NGO Coordination Board violated Article 36 of the Constitution.
Court’s Assessment and Findings
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The Court 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 is provided for under Art. 22 (1) of the International Covenant on Civil and Political Rights (ICCPR).
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The Court further noted that literal reading of Art. 36 is that the LGBTQ+ group is not excluded from the definition under Article 36. The ‘Right to Form an Association’ is an inherent part of the Right to Freedom of Association guaranteed to every person regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Furthermore, this right cannot be limited unless as provided for under the Constitution.
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The Court observed that there was no evidence placed before the appellant to demonstrate that persons who profess to be LGBTQ+, are criminals. This was a mere assumption which was not born out of evidence when indeed it is confirmed by empirical data that even heterosexuals commit offences under Sections 162, 163 and 165 of the Penal Code. The Court further observed that although Sections 162, 163, and 165 prohibit any person from committing acts that go against the order of nature, the said sections do not distinguish between heterosexual or homosexual offenders. “Indeed, the words, “any person”, connote a potential offender under those sections who may very well be heterosexual, homosexual, intersex or otherwise”.
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The Court pointed out that Art. 36 (3) of the Kenyan Constitution contemplates that the right to freedom of association is subject to limitation. However, any limitation on any fundamental rights and freedom is subject to Art. 24.
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Perusing the afore-stated penal provisions pursuant to Art. 24 of the Kenyan Constitution, the Court found that Art. 4 of the Constitution, does not express the intention to limit LGBTQ+ community’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.
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The Court further found that the appellant’s interference to the respondent’s right to freedom of association did not pursue any legitimate aim such as national security or public safety, the prevention of disorder or crime, the protection of health and morals etc. Therefore, the appellant’s limitation of the right to freedom of association was not proportionate to the aim sought.
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The Court pointed out that the Constitution mandates the State and its organs to uphold national values and principles of governance such as human dignity, equity, social justice, inclusiveness etc. The State also has a fundamental duty to address the needs of vulnerable groups within society including members of minorities and marginalised communities.
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It was thus held that Right to Freedom of Association is a human right, vital to the functioning of any democratic society. However, the Court cautioned that- “It should be noted however that all persons, whether heterosexual, lesbian, gay, intersex or otherwise, will be subject to sanctions if they contravene existing laws”.
The Dissent
Two Judges- Justice Mohammed K. Ibrahim and Justice William Ouko disagreed with certain aspects of the majority opinion and delivered their separate dissenting opinions.
In his partly dissenting opinion, Justice Mohammed K. Ibrahim stated that, due to the continued existence and validity of Sections 162, 163 and 165 of the Penal Code, he failed to see how the appellant could have reserved a name or allowed the formation of an association with the very terms that imply or whose declared purposes are in support of actions that are against the law or expressly banned by it. He concluded that the appellant’s rejection of the names proposed by the respondent did not amount to discrimination on the basis of sex or sexual orientation as it was firmly within the law.
Justice William Ouko in his detailed dissenting opinion noted that, the appellant had the administrative discretion to grant or deny an application for reservation of name or registration of a name of a proposed association. If the decision to reject the proposed names was made in good faith, without consideration of extraneous matters and according to law, the requirement of Art. 36 was satisfied. In the instant case, the appellant explained those grounds primarily to be the prevailing penal system that outlaws acts that may be associated with the proposed names.
Since Sections 162, 163 and 165 criminalize same-sex relationships in Kenya, therefore Justice Ouko opined that the appellant’s decision met the constitutional and legal threshold of reasonableness, rationality, proportionality and procedural fairness.
Justice Ouko further suggested certain strategies to address discrimination against the LGBTQ+ community–
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To avoid stigmatisation, discrimination, State sponsored violence and to achieve the objective of serving the LGBTQ+ community, applicants in other jurisdictions have pursued registration of associations using more neutral names and language. Justice Ouka said, “Some of the groups have simply adopted a rainbow name, an LGBTIQ pride flag, without the mention of any of the words in the acronym LGBTIQ that may be perceived to be offensiv e”.
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Justice Ouko also stated that a more pragmatic approach towards opening up the door for registration of the group would be to introduce legislative reforms, including repealing Sections 162, 163 and 165.
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Third strategy as stated by Justice Ouko is judicial pronouncements. Justice Ouka referred to the case of Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where Supreme Court of India upheld the constitutional validity of Section 377 of Penal Code, 1860; which was later overruled by its 5- Judge Constitution Bench in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, which held Section 377, Penal Code, 1860 to be unconstitutional insofar it criminalised gay sex between consenting adults. Stressing upon the importance of Navtej Singh Johar case Justice Ouko stated that, “Its significance is that, for the first time in India, that judgment decriminalised consensual sex among adults”.
[NGOs Co-ordination Board v. Eric Gitari, Petition No. 16 of 2019, decided on 24-02-2023]
