Expectedly, a huge debate emerged from one of the latest decisions from the Supreme Court of Kenya (SCoK). On the 24 February 2023, in settling Eric Gitari V NGO Coordination Board & 4 Others, the SCoK, through a majority decision (3:2), upheld the Court of Appeals (CoA) decision that lesbians, gays, bisexual, transgender and queer (LGBTQ+) citizens of Kenya had the constitutional right to join, form and register organisations in Kenya.
The decision, which was a culmination of a decade-long legal battle, was triggered when in 2013 when the Non-Governmental Organisations (NGO) Coordination Board refused to register a group for LGBTQ+ persons, which currently goes by the name and fashion of the National Gay and Lesbian Human Rights Commission (NGLHRC). Through Eric Gitari, its director at that time, the organisation took the matter to the High Court of Kenya which in 2015, decided in its favour. The High Court cemented the right of association for every Kenyan without discrimination, including sexual orientation. This did not sit well with the Board, whose opinion was that it was wrong to register an organisation associated with offences outlined in Kenya’s Penal Code. These are (what shall be referred to as listed sections in this article) sections 162 (unnatural offences), 163 (attempt to commit unnatural offences), and 165 (indecent act between male persons), which in Kenya’s “code of criminal law” are outlined under “offences against morality”.
It is this thinking that propelled the Board to unsuccessfully go all the way to the Supreme Court.
Since the day the SCoK published its decision on the matter, the public, political leaders (including the President) and religious organisations have unreservedly expressed their dissatisfaction. An analysis of the comments thereof suggest that part of the displeasure stems from mis-/disinformation about the decision, while part of it validly questions what has been termed by some, writ large Hon. Peter Kaluma MP, as “contradictory”. The former comes from what has been wrongly interpreted and propagandised as SCoK’s legalisation and decriminalisation of same-sex marriages and exclusive attribution of commission of the listed offences to the LGBTQ+ community.
Cutting to the chase, the Constitution of Kenya 2010 prohibits marriages between persons of the same sex (Article.45 (2)). It however does not prohibit same-sex sexual orientation, which means that constitutionally, there is no offence if and when a person is sexually or romantically attracted to persons of his or her sex or both, for instance, a man being sexually inclined to men or to both men and women. Brakes to the extent of the attraction are provided in the Penal Code, as outlined above, that if the attraction is ‘consummated’ in a manner that fits the description and elements of the listed sections, if convicted, a prison sentence is in the offing.
In other words, as far as Kenya’s current legal framework stands, and using the popular cliché – a person can be attracted but can only kula kwa macho. The fact is that the Supreme Court went ahead to caution members of the community and Kenyans in general (because the sections also apply to heterosexuals), about the prevailing position of the law, which in 2019 was unsuccessfully challenged at the High Court by the same Eric Gitari. The matter now lies at the Court of Appeal.
Perhaps this is where the confusion and conflation is coming from – if this be the law, which the SCoK, through the words of Justice William Ouko anticipates will one day fall in its in-tray for consideration, (paragraph 208 of the judgment), and the sexual acts are criminalised moral offences, how could it then go ahead to allow those deemed to have crossed the moral Rubicon incorporate an organisation?
Inasmuch as these are not orientations per se, Kenyans are wondering whether the court’s pronouncement means that robbers or murderers be allowed to form and register organisations that help them further their intentions. On the other hand, was this petition about the listed offences or the right to association and freedom from indignity and discrimination? Why are these listed offences automatically associated with gay, lesbian, and bisexual persons? For argument’s sake, and for those who think that the only thing that LGBTQ+ people do, on a 24-7 basis is “have carnal knowledge”, where say they choose celibacy, should they be allowed to ‘associate’? Can LGBTQ+ people register a Savings and Credit Cooperative Society (SACCO) using their sexual orientation as the common bond?
Clarity of the issues is needed. Eric Gitari and associates initially went to court to seek redress for refusal of registration of their group as an NGO (my emphasis) on the basis of Article 36 of the 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. (With emphasis)” Upon rejection, he challenged the NGO Board’s decision on the ground that by refusing to register the organisation, the regulator was discriminating against LGBTQ+ people, contrary to Article 27 of the Constitution which provides that (1) “Every person is equal before the law and has the right to equal protection and equal benefit of the law” and (2) “Equality includes the full and equal enjoyment of all rights and fundamental freedoms.” The Article goes further to prohibit discrimination by the state or any person “On any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” The courts could not understand why the Board’s collective thinking, without evidence, automatically attributed the group’s desire for registration as that of furtherance of the listed sections. Analogically, whereas the group was invoking its right to meet in the living room, the Board’s mind read this to mean the bedroom.
Fortunately, the majority (Deputy Chief Justice Philomena Mwilu, Justices Njoki Ndung’u and Smokin Wanjala) were able to decipher this and prevailed by properly bifurcating the issues. All that these Kenyans wanted was to have their group registered despite their sexual tags. Like for all other Kenyans, the legality or illegality of whatever they could do through the group was circumscribed by the law. For instance, they could meet and discuss their cases, play chess or football, but not kill, steal, or commit the listed offences.
In other words, the Board was without evidence, prejudicial of the conduct of Eric Gitari and his associates, and the motives of their proposed organisation. According to its website, the NGLHRC was started in 2012 to among other things, “achieve legal and policy reforms towards equality and full inclusion of sexual and gender minorities through strategic litigation, legal clinics, research and documentation and urgent action missions’’. To this effect, this was a major victory and achievement for the group and the LGBTQ+ community.
Additionally, the organisation seeks to “promote freedom of expression and association…” and “encourage political and civic participation of LGBTQ+ individuals and communities in Kenya…”. How these are read to mean actualisation of the listed sections, which the claimer must prove, is a wonder.
In identifying the conflation and prejudice, the three justices forming the majority interpreted usage of the word ‘including’ in Art. 27 (4) of the Constitution to being “illustrative and not conclusive”. This meant that it is not only those factors expressly listed in the article that form grounds for discrimination. It also expanded the understanding of the term ‘sex’ to also mean sexual inclinations.
On the other hand, the minority (Justices Mohammed Ibrahim and William Ouko) were of the opinion that the existence of the offences in the Penal Code precluded registration of such an organisation, and sexual orientation is not one of the discrimination grounds anticipated in Article 27(4) of the Constitution. If it was, the framers of the Constitution would have directly stated it like it is in the South African and Mozambican constitutions.
Back to the opprobrium at hand.
It is important to note that right from the onset, the court contextualised the matter before it. The justices said, “Before determining the issues… we find it necessary to emphasise (sic) that the matter before us is not about the legalisation or decriminalisation of LGBTIQ [is it criminalised?], or the morality of same-sex marriage but revolves around the question of whether refusal to register an organisation of persons who fall within the LGBTIQ contravened the fundamental rights and freedoms of association guaranteed in the Constitution and whether the rights freedom of association and freedom from discrimination of those persons seeking to be registered were infringed upon.”
This suggests that most of those commenting about the case have either not carefully read the judgement or have done so but chosen to interpret it in a manner suggesting a conflation of issues, or have in typical Kenyan style, relied on the infallible reading and interpretation of their godfathers and mothers. A keen reading of the judgement shows how right from the High Court, the justices carefully isolated the issues, to arrive at the critical two – right of association and freedom from discrimination. These were the issues before the courts.
The refusal to register and the ensuing commentary reveals Kenyan society’s prejudicial word association around LGBTQ+ issues – when the words gay and/or lesbian are mentioned, minds jump the gun and head straight to bed. The same applied to the justices in the minority, who without logical explanation automatically convicted the petitioner(s) for offending the listed sections. Whereas these provisions, penned in 1930, are as this episode has shown, reflexively attributed to the LGBTQ+ community, the framers then, even in those olden and conservative times, thought widely enough so as to ascribe them to all and not only LGBTQ+ people.
In emphasising the prejudice and hypocrisy, the court actually mentioned, sadly without directing to the source, that statistics have it that the sexual acts that fit the definition of the listed sections are performed more by heterosexual couples more than the LGBTIQ+. To this it said – “Moreover, there was no evidence placed before by the 1st appellant (sic) to demonstrate that persons who profess to be LGBTIQ are criminals or that it is only they who are capable of committing the offence of “unnatural acts.” This was a mere assumption which was not born out of evidence when indeed it is confirmed by empirical data that even heterosexuals commit such offences more often than not most callously (my emphasis).”
In conclusion, the justices emphasised that the right to association is not only open for those with religiously, culturally, morally, or politically popular positions or opinions. The Constitution also protects those with unpopular convictions. In a secular ‘under-construction’ nation like Kenya which subsumes diversity, plurality and tolerance, the right of association and freedom from discrimination are elementary. There is a myriad of groups peddling all manner of products and services in Kenya. These include political parties, religious or faith based organisations, business corporations, cultural and social groups. Kenyans have the freedom to choose which to form, join, participate in, worship in or even listen to.
As shown above, Eric Gitari and the NGLHRC did not state in their goals that for all intents and purposes, they had come to forcefully or compulsively conscript membership or followership into the LGBTQ+ orientation. Like all other interest groups, its urge to commune and enculturate with dignity and without discrimination was all the group was calling for. After all, the same Article 36 protects every person in Kenya from forceful association. So what are these “…unintended and unhelpful consequences” that Hon. Moses Wetang’ula, Speaker of the National Assembly, is warning about? What is to be feared if one is sure of his or her sexual orientation, parenting skills, faith or gospel, moral and cultural positions? For Christians, are some sins more equal than others and aren’t we all sinners? Theologically, isn’t the Church an association of sinners? Aren’t we all incorrigible breakers of morals?
An analysis of the backlash to the judgement suggests that perhaps what is more at stake is the fear of the weakness in individual and collective positions when it comes to social, cultural, moral, and religious positions about sexual orientation, and the best way of dealing with it is by hiding heads in the sand. The other revelation, which stretches the game beyond regulation time for the LGBTQ+ community, is that these issues shall not be won at the corridors of justice alone. There remain tough cultural, political, and religious markets to be negotiated.
In the meantime, let’s live and let live.