" We won" were the words of delight, noting an extraordinary victory in The High Court of Kenya, where it was ruled that members of a lesbian, gay, bisexual, and transgender (LGBTI) rights group could formally register their organization.
The High Court's groundbreaking decision was issued in response to a petition filed by the Kenyan group, National Gay and Lesbian Human Rights Commission (NGLHRC), to register under the Non-Governmental Organizations Coordination Board Act, which had rejected the group’s application for registration back in March 2013.
The board had refused to register the group because it said that the name of the organization was “unacceptable,” noting also that Kenya’s penal code “criminalizes gay and lesbian liaisons.”
Eric Gitari, Executive Director, NGLHRC, released this statement:
"The High Court of Kenya, in a groundbreaking precedent, ruled on April 24, 2015, that lesbian, gay, bisexual, intersex, transgender and queer (LGBTIQ) persons can formally register their organizations and welfare groups. That popular morality should not be a basis for limiting rights in Kenya.
The decision was issued in response to a petition filed by the National Gay and Lesbian Human Rights Commission (NGLHRC) to register under the Non-Governmental Organizations Coordination Board Act. The Non-Governmental Organizations Coordination Board had rejected the request to register NGLHRC more than five times since April 2012. In denying the application, the board said that the name of the organization was “unacceptable,” and that it could not register it because Kenya’s penal code “criminalizes gay and lesbian liaisons.”
In their judgment, the three judges held that AG's preliminary objection that the petition was premature and baseless was not meritorious and ruled that the petition is warranted and petitioners do have a right to form an organization.
Regarding the petitioner’s prayer to have the court give interpretations on what the Constitution means by the words "Every person" when prescribing rights, the court ruled that the words every person includes all despite their sexual orientation.
The court also found that the NGO Board violated Article 36 of Constitution (Freedom of Association) when they frustrated the registration application by the petitioners. The Constitutional Court further held that morality should not be justification for limiting rights in an open and democratic society under article 24 of the Constitution of Kenya. An order of mandamus has been issued to the NGO board to comply and register the NGLHRC
Mr. Kinyanjui for the interested party (Kenya Christian Professional Forum) shall seek to appeal the judgement. The court has granted him leave to.
This judgement from the constitutional court is ground breaking; it marks a historic momentum towards the inclusion of sexual and gender minorities into the Kenyan democratic space. It alludes to a country that is keen to becoming much open and democratic despite the challenges. By underscoring the constitutional morality of inclusion at the expense of religious morality, the judges honoured the spirit and aspirations of Kenyans who enacted this constitution after a period of post-election violence that had been simmering after years of virulent exclusion of others. This rejection of popular morality as a limitation to rights will hopefully be a beckon of jurisprudence to other thirty eight African nations that are still moral arguments to limit rights of minorities.
We welcome the appeal by the Kenya Christian Professional Forum and look forward to enhancing the equality jurisprudence of our nation through the legal process. As we welcome the victory, we honour the path of struggle by many activists and allies who have walked before us and helped us along the way. We share our victory with the Kenya LGBTIQ movement, the LGBTIQ litigation collective, our domestic and international research teams and the stellar counsels for coming through. "
We at The African Human Rights Coalition (African HRC) congratulate the courageous members and leadership of NGLHRC and commend their legal team for a job so well done.