The Kenya Court of Appeal on Friday recognised that LGBT+ people have a right to associate. In a 3-2 decision, Justices Philip Waki, Asike Makhandia and Martha Koome agreed with an earlier High Court ruling that stated LGBT+ people have a right to form an NGO and blocking them was a denial of their fundamental rights.
The NGO Coordination Board had sought to deny LGBT+ Kenyans the right to associate through an appeal.
Justice Philip Waki told the court: “The issue of LGBT is rarely discussed in public. But it cannot be doubted that it is an emotive issue, the reality is that this group does exist and we can no longer deny that. Let it go down that I will not be the first to throw a stone and harm them.”
However, Justice Daniel Musinga and Roselyn Nambuye dissented saying the High Court had no jurisdiction to entertain the petition filed by Eric Gitari.
Three judges dismissed the appeal by the NGO coordination board, agreeing with the High Court that ALL, including LGBT persons, should be allowed to form an organization and that what is criminalized is the act (in the penal code) and not the person, the Kenyan.
— #Repeal162 because #LoveIsHuman (@NGLHRC) March 22, 2019
Laws in Kenya require all non-profit groups to register with the NGO Coordination Board, but the board had rejected the group’s application in 2015 because it caters to LGBT+ people.
The National Gay and Lesbian Human Rights Commission (NGLHRC) applauded the court’s decision.
“The judges have chosen to stand by the constitution that allows for like-minded persons to meet and organise formally,” Njeri Gateru, NGLHRC’s executive director, said in a statement.
“The ruling only brings inclusivity and sets a positive precedent for other rights organisations in Kenya, and around Africa.”
The Kenya Human Rights Commission (KHRC) said, “Big win for freedom of association and vibrant civic space.”
“It is time for the NGO Coordination Board to register NGLHRC once and for all. Also a great opportunity to operationalize the Public Benefits Organizations Act which seeks to address the inherently abusive NGO Coordination Act,” they added.
George Morara, Commissioner and Vice Chair, Kenya National Commission on Human Rights (KNCHR) said, “A big victory for human rights!!! A big victory for the LGBTQ community…A big victory for all of us…The greatness of any nation is judged by its ability to serve all its citizens equally without any form discrimination whatsoever!
In 2015, the High Court ruled that it was unconstitutional not to register LGBTIQ human rights organisations.
The decision was issued in response to a petition filed by the NGLHRC to register under the Non-Governmental Organizations Coordination Board Act.
In its decision, the three-judge High Court panel composed of Justice Mumbi Ngugi, Justice George Odunga, and Justice Isaac Lenaola ruled that the NGO board’s decision violated article 36 of Kenya’s constitution, which states that “Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.”
NGLHRC’s aim is is to promote and protect the equality and inclusion of LGBTIQ individuals and communities in Kenya and advance their meaningful participation in society.
Their main activities include legal aid, strategic litigation, public advocacy and training and civic education on the rights and needs of sexual and gender minorities in Kenya.