Court. Image: Pexels
Court. Image: Pexels
On Friday, the court upheld a 2015 High Court ruling ordering the government to register the National Gay and Lesbian Human Rights Commission (NGLHRC) as an NGO.
It also affirmed that the organisation could be registered with the words ‘gay’ and ‘lesbian’ in its name.
In their landmark decision, the judges stated: “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…”
They added: “As such, we agree with the reasoning of the High Court that just like everyone else, LGBTQ have a right to freedom of association which includes the right to form an association of any kind.”
The NGLHRC said in a statement that the court’s decision was “a victory” for Kenya’s LGBTIQ+ community.
“This affirmation by the supreme court of the land is especially necessary at a time when the rights of the people who NGLHRC intends to protect are particularly threatened; it emboldens our resolve as a community to agitate for a better Kenya for all of us,” said Njeri Gateru, NGLHRC’s Executive Director.
The decision marks the end of a ten-year-long legal battle to secure the right to freedom of association for LGBTIQ+ people in Kenya.
“Morality should not serve as a justification to limit fundamental rights.”
The NGLHRC first applied to be registered by the Non-Governmental Organisations Coordination Board in 2013 but was rejected on the basis that it is an LGBTIQ+ organisation.
The board insisted it could not register the group due to the presence of the words ‘lesbian’ and ‘gay’ in its name, terming these “unacceptable” as Kenya’s penal code “criminalises gay and lesbian intimacy”.
After multiple, unsuccessful attempts to register the organisation, the NGLHRC filed a suit against the board.
In its 2015 decision, the High Court found that the board’s refusal to register the NGLHRC, violated article 36 of Kenya’s constitution to freedom of association.
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The three-judge bench further asserted that popular conceptions of morality should not serve as a justification to limit fundamental rights.
The matter was taken on appeal by the board to the Court of Appeal, which in 2019 agreed with the High Court, and then to the Supreme Court which finally settled the issue in favour of the NGLHRC.
Amnesty Kenya congratulated the organisation and applauded the Supreme Court for affirming “the freedom of association for all, regardless of identity”.
While the NGLHRC celebrated the historic ruling, it committed itself to “continue to push for the full realisation of human rights for all individuals, regardless of their sexual orientation, gender identity and expression”.
Homosexuality remains criminalised in Kenya thanks to colonial-era laws referencing “carnal knowledge against the order of nature” and “gross indecency,” under which LGBTIQ+ people can be punished with up to 14 years in prison.
Article by Roberto Igual