The Supreme Court on Tuesday upheld the right of the National Gay and Lesbian Human Rights Commission (NGLHRC) to register.
Ten years ago, Kenya's NGO Coordinating Board refused to register the NGLHRC, claiming it 'promotes same-sex behaviour'.
But in February this year, the Supreme Court said the board was wrong to stop NGLHRC's registration, allowing it to be formally recognised as an organisation.
Opponents of the decision applied for a review of the court's ruling. The judges delivered their verdict on Tuesday, confirming the right of association and freedom from discrimination cannot be restricted.
In February, by a majority of three judges against two, the court was of the view that the board's refusal of the registration of a non-governmental organisation (NGO) seeking to champion the rights of LBGTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer or Questioning) persons in Kenya was discriminatory.
Justices Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala and Njoki Ndung’u said it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of sexual orientation.
They held that the board’s decision to refuse registration of an LGBTQ+ group was “unreasonable and unjustified”.
The legal dispute emerged from activist Erick Gitari’s bid to register an LGBTQ+ organisation in Kenya. The board refused to reserve the name of Mr Gitari’s intended NGO on the ground that “Sections 162, 163 and 165 of the Penal Code criminalises gay and lesbian liaisons”.
But the Supreme Court said thr decision was discriminatory, in view of provisions of Section 27(4) of the Constitution.
The said provisions say 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".
The top court noted that by refusing to register the NGO, the persons were beeing convicted before contravening the law.
“Such action is retrogressive. We, therefore, affirm the decision of the Court of Appeal that the appellant violated Mr Gitari’s right to freedom of association under Article 36 of the Constitution,” said the judges.
The court, however, pointed out 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.
In addition, the court determined that use of the word “sex” under Article 27(4) of the Constitution 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.
Justices Mohammed Ibrahim and William Ouko dissented and upheld decision of board, stating it could not have allowed registration of an organisation to champion for actions that are against the law or expressly banned by the law.
According to the Penal Code, same-sex sexual activities are considered crimes punishable by imprisonment.
Sections 162 and 165 of the penal code criminalise male homosexual relationships while Section 163 prescribes a penalty of imprisonment for seven years.
“As long as, Sections 162, 163 and 165 of the Penal Code remain valid laws, then the actions of the board, in refusing to allow the reservations of names which include the terms “gays” and “lesbians”, cannot be considered unreasonable, irrational or illegitimate,” they said.
The pair said that due to the usage of the phrase "having carnal knowledge of any person," which is "against the order of nature," Section 162's interpretation allows for the inference that female same-sex relationships are also "unnatural."
This means that these clauses can be used to prosecute both men and women who are in same-sex relationships.
They added the board’s decision to reject the names proposed by Mr Gitari did not amount to discrimination on the basis of sex or sexual orientation.
For Justice Ibrahim, the freedom of association is not absolute and may be subject to limitation.
“As long as Section 162, 163 and 165 of the Penal Code remain valid edicts of law, then the appellant could not 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,” said the judge.
Sections 162 and 165 criminalises male homosexual relationships while Section 163 prescribes a penalty of imprisonment for seven years.
For Justice Ouko, there is a clear distinction between sex and sexual orientation.
He added that all human beings, including LGBTQ+ persons, are entitled to the full enjoyment of all the rights under chapter four of the Constitution, not by reason of their sexual preferences as LGBTQ+ but as human beings.
“I believe that in Article 27(4) the phrase sexual orientation was deliberately omitted by the framers because they only intended to guarantee the right against discrimination on the ground of a female or male gender,” said Justice Ouko.
In April 2012, Mr Gitari applied to the board, on three separate occasions, for reservation of one of the six variations of names submitted for a proposed NGO to address the violence and human rights abuses suffered by the LGBTQ+ community in Kenya.
The proposed names were 'National Gay and Lesbian Human Rights Commission', 'National Coalition of Gays and Lesbians in Kenya', 'National Gay and Lesbian Human Rights Association', 'Gay and Lesbian Human Rights Council', 'Gay and Lesbian Human Rights Observancy' and 'Gay and Lesbian Human Rights Organization'.
The only response he received from the Board was that the names were “unacceptable”. Frustrated by the reply, he instructed an advocate to re-apply.
It was at this point that the board gave a comprehensive explanation on why it could not reserve the proposed names or register the association as proposed.
According to the board, the proposed names and the objects of the proposed NGO were offensive to public policy and stood in conflict with Sections 162, 163 and 165 of the Penal Code, which outlaw homosexual liaisons. With that, the board technically rejected the application.