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A gay and lesbian NGO has won the fight to be registered in Kenya after the Supreme Court ruled that the regulator acted illegally when it refused to register the organisation.
The NGO Board of Kenya on Friday lost its appeal at the Supreme Court of Kenya against the National Gay and Lesbians Human Rights Commission (NGLHRC). On the 24th February 2023 the apex court ruled that it was discriminatory of the NGO Board to refuse to register the NGLHRC led by Eric Gitari back in 2012.
In the ruling the Supreme Court said that “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.”
But this has been a decade long battle between the Board and NGLHRC. It all started when Eric Gitari on three occasions went to reserve NGLHRC. The Board declined and said it was unacceptable. Mr. Gitari asked an advocate to reapply. That’s when the board responded and said that it declined the application because of the presence of the words gays and lesbians.
The board argued that Sections 162, 163 and 165 of the Penal Code which outlaw homosexual relations in Kenya informed their decision to refuse to register Gitari’s organization.
Jilted, Gitari went to the High Court in 2015 and won the case against the NGO Board. The High Court ruled that “NGO Board was impermissibly discriminating on the basis of the presumed sexual orientation and gender identity of NGLHRC’s personnel, in violation of constitutional protections around non-discrimination,” according to Human Rights Watch.
The board decided to appeal the ruling at the Court of Appeal. Unfortunately for them the Appellate Court upheld the High Court ruling in 2019. This led the Board to appeal at the highest court in the land.
Three Supreme Court judges Justices Philomena Mwilu, Njoki Ndung’u and Smokin Wanjala ruled that the NGLHRC could be registered because the gays and lesbians have the right of association. “Such action is retrogressive. We, therefore, affirm the decision of the Court of Appeal that the appellant violated Mr Gitari’s right to freedom of association under Article 36 of the Constitution,” declared the ruling.
On the other hand, Justices Mohammed Ibrahim and William Ouko dissented and leaned on the side of the Board. In their view, the board was justified in refusing to register the organization because it would violate the law.
It has been a ten-year long contest which NGLHRC-which is now led by Njeri Gateru- has won.
