Summary of the Supreme Court of Kenya Judgement in Petition No 16 of 2019: The NGO Coordination Board v Eric Gitari and 3 Others.
BACKGROUND
In a letter dated 25th March, 2015 the NGO Coordination Board refused to reserve any of Mr. Eric Gitari’s 5 names to register a non-governmental organization to champion the rights of Lesbian, Gay, Bisexual, Transgender, Queer or Questioning (LGBTIQ) persons in Kenya. The Board’s Executive Director refused to do so on the grounds that Sections 162, 163 and 165 of the Penal Code criminalizes Gay and Lesbian liaisons.
Aggrieved by the Board’s decision, Mr. Gitari filed High Court Petition No. 440 of 2013 alleging that the Board’s actions violated Articles 20(2), 31(3), 27(4), 28 and 36 of the Constitution, as well as Sections of the NGO Coordination Act.
ISSUES
The primary issues for determination were:
- Whether LGBTIQ people have a right to form associations in accordance with the law;
- If the answer is yes, whether the decision of the Board not to allow the registration of the proposed NGO because of the choice of name is a violation of the rights of Association and non-discrimination.
The three judge bench of the High Court ruled that the limitation of the Freedom of Association for LGBTQIA individuals was not justified as per Article 24 of the Constitution. Whereas homosexual activity is criminalized under section 162, 163 and 165 of the Penal Code, sexual orientation is not criminalized. Hence the court determined that the reliance on those sections to limit the registration of the organization was untenable.
In regards to Article 27 The High Court noted that the Board took issue with not only the name of the proposed organization, but also the objects and purpose of the proposed NGO. The Court observed that an interpretation of Article 27 which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination. As such, it found that in attempting to reject the formation of the Organization on the grounds of furthering an illegality, just because it did not like the objects of the organization constituted an infringement of the freedom of association.
In regards to Article 36 the court ruled that the phrasing “every person” included every person living in the country irrespective of their sexual orientation. Consequently, the High Court issued an order of Mandamus directing the Board to register the Organization.
Dissatisfied with the decision of the High Court, the Board Logged an Appeal at the Court of Appeal. The appellate court dismissed the Appeal by a majority decision (3-2) affirming the decision of the High Court. The court concluded that by refusing to register the NGO, Mr. Gitari was convicted before contravening any law, and that such action was retrogressive.
The two dissenting judges stated that freedom of association is subject to limitations as specified in the Constitution, and that Article 27(4) only prohibits discrimination based on gender and not sexual orientation. The two judges noted that current laws in Kenya do not permit homosexual practices, and therefore the rejection of the proposed NGO registration is lawful.
Again, dissatisfied by the decision of the Court of Appeal the Board filed an Appeal to the Supreme Court where 3 issues were raised as follows:
- Whether the 1st respondent was required to exhaust internal remedies under the NGO Coordination Act.
- Whether the decision of the Executive Directive of the NGO Coordination Board violated Article 36 of the Constitution.
- Whether the decision of the NGO Coordination Board was discriminatory and contravened Article 27 of the Constitution.
Determination
In regards to the doctrine of exhaustion of remedies, the court ruled that there are no substantive provisions on disputes in regards approval of names under the NGO Coordination Act, hence the suit before the high court was proper.
In regards to the second issue, the Court asserted that S. 162, 163 and 165 of the Penal Code do not distinguish between persons of different sexual orientations. The Court also found that Mr. Gitari’s intention was to register an organization to champion for the rights of LGBTIQ people, and this has no correlation with the offences articulated under sections 162, 163 and 165 of the Penal Code.
As such, the Supreme Court agreed with the reasoning of the High Court and Court of Appeal that just like everyone else, LGBTQ people have a right to freedom of association which includes the right to form an association of any kind.
In regards to the final issue the Court ruled that the Board’s decision to refuse to register LGBTQ organizations was discriminatory as the word “Sex” as used in Article 27 connotes sexual orientation. The Supreme agreed with the High Court that any interpretation of the Constitution that exclude people because of sexual orientation are discriminatory. The Appeal was therefore dismissed.
DATE: MARCH 27, 2023 BY: ANNE GATHIRWA
For more insights pertaining to this matter, you can reach the writer at annegathirwalaw@gmail.com. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke.