By Melanie Nathan, September 12, 2023, (Melanie Nathan is a country conditions expert witness for LGBTQI asylum seekers from African countries, including Kenya: nathan@AfricanHRC.org)
Today the Kenyan Supreme Court dismissed Homa Bay Town Member of Parliament Peter Opondo Kaluma's case in which he had asked the apex court to review its decision on the definition of sex.
Kaluma was challenging the Supreme Court ruling and the manner in which the highest court in the land had characterized the term "sex" in light of an LGBTQ case.
While dismissing Kaluma's appeal, the Supreme Court established that "homosexuals have the right not to be discriminated against directly or indirectly."
The Court went further and noted that Kaluma, a vocal critic of the LGBTQ community, did violate the rights of the gay community.
"Consequently, we did, by a Majority, agree with the findings of the High Court, and the Court of Appeal that LGBTIQ persona have a right to freedom of association, which includes the right to form an association of any kind," the Supreme Court affirmed.
The Supreme Court also ordered the Homa Bay Town Member of Parliament to bear the costs of the appeal.
Previously the Supreme Court had ruled in favor of Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) persons, NGHLHRC, in their quest to officially register a Non-Govermental Organisation (NGO). In that verdict delivered by a five-judge bench on Friday, February 24, the Supreme Court castigated the NGOs Co-Ordination Board for refusing to register four names for an LGBTQ organization on the grounds that same-sex marriage is outlawed in Kenya:
Three judges in the five-judge bench ruled that community members have a right to associate even though the law considers same-sex marriages illegal. Hence, the refusal to register them was discriminatory and contravened the law. "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 read. The court determined that using the word "sex" under Article 27(4) 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. "It was of the view that the word "including" under the same Article is not exhaustive, but only illustrative and would also comprise "freedom from discrimination based on a person's sexual orientation." "Therefore, the appellant's action of refusing to reserve the name of the 1st respondent's intended NGO on the ground that "Sections 162, 163 and 165 of the Penal Code criminalises Gay and Lesbian liaisons" was discriminatory in light of Section 27(4) of the Constitution," the court stated.
The NGO board, through its Executive Director, had declined to approve four of the proposed names on the grounds that Sections 162, 163 and 165 of the Penal Code criminalise Gay and Lesbian liaisons.
The names rejected by the board included the 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.
Now the Supreme Court of Kenya has reaffirmed NGLHRC's right to such registration, finding as follows: "Flowing from our findings above, the final orders to be made are as follows:
(i) The Notice of Motion dated 9th March 2023 is dismissed," the ruling read in part. The Supreme Court held that Sections 162,163 and 165 of the Penal Code and the provisions of Article 24 of the Constitution do not convey the intention to limit the freedom of association of LGBTQ persons merely due to their sexual orientation. "On the provisions of Article 36, the Court found that the 1st respondent’s limitation of the 2nd respondent’s right to freedom of association was not proportionate to the aim sought for registration of the proposed NGO. "This Court also held that the word “sex” as used in Article 27 of the Constitution, was to be interpreted as to include the expression “sexual orientation," the Supreme Court observed.
In his application before the Supreme Court, dated March 9, 2023, Kaluma asked the Judges to stay the orders which had compelled NGO Coordination Board to register members of the LGBTQ community.
Kaluma also asked the Judges to review and set aside the judgment of February 24, 2023, where at paragraph 79 the Court found and decreed that the use of the word sex under Article 27(4) of the Constitution ‘refers also to sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise.
While dismissing Kaluma's appeal, the Supreme Court established that homosexuals have the right not to be discriminated against directly or indirectly.
The Court went further and noted that Kaluma, a vocal critic of the LGBTQ community, did violate the rights of the gay community. "Consequently, we did, by a Majority, agree with the findings of the High Court, and the Court of Appeal that LGBTIQ persona have a right to freedom of association, which includes the right to form an association of any kind," the Supreme Court affirmed. The Supreme Court also ordered the Kaluma to bear the costs of the appeal.
Melanie Nathan, of AHRC notes that this could cause a serious backlash against the LGBTI community in the country and will serve as the impetus for furthering the heightened anti-LGBTI legislation which Mr. Kaluma has introduced into the Kenyan Parliament. While such, if passed is more likely to be ruled unconstitutional based on what this case reflects, it is still extremely onerous as all outcomes serve to license extreme violence against Kenya's LGBTI community as well as foreign refugees seeking protection and solutions in Kenya.