Azimio MP's Reaction To Supreme Court Ruling Favouring LGBTQ Organisation
The highest court in the land on Friday, February 24 dismissed an appeal by the government to bar registration of a gays and lesbians lobby groups...
Marvin Chege 
Homa Bay Town Member of Parliament (MP) Peter Kaluma criticised a Supreme Court ruling which handed a victory to Lesbian, Gay, Bisexual, Transgender, Queer or Questioning (LGBTQ) persons on the road to officially registering a Non-Govermental Organisation (NGO) in Kenya.
The highest court in the land on Friday, February 24 dismissed an appeal by the government to bar registration of a gays and lesbians lobby groups, ending an 11-year legal battle by activists seeking the official registration of an LGBTQ+ organisation in Kenya.
According to the five-judge bench's ruling, the Court observed that neither the NGO Coordination Act nor the NGO Regulations provide for any internal dispute resolution mechanism for the administrative action concerned. The Court was emphatic that an Act of Parliament must clearly provide for an internal dispute resolution mechanism before an aggrieved party can be bound by such a mechanism.
In addition, the refusal by the NGOs Coordination Board to register the lobby group would violate human rights based on sexual orientation. However, the court held that the country’s law - Section 162 of the Penal Code -that prohibits “unnatural offences” (defined as having carnal knowledge with any man, woman or animal against the order of nature) is binding.
The court stated that those who will contravene the Penal Code, which criminalises “unnatural offences”, will be subjected to sanctions prescribed in the existing laws. Section 163 prescribes a penalty of imprisonment for seven years for the offences.
By a majority of three judges against two, the court was of the view that the board's refusal of the registration of a non-governmental organization (NGO) seeking to champion the rights of LBGTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer or Questioning) persons in Kenya was discriminatory.
Justices Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala and Njoki Ndung’u said it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of sexual orientation. They held that the board’s decision to refuse registration of an LGBTQ+ group was “unreasonable and unjustified”.
"The Court determined that the use of 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," the apex court ruled in part.
Kaluma however wondered why the Supreme Court asked the NGOs Board to register LGBTQ communities while it had earlier ruled that it is a crime to be homosexual in Kenya.
“The supreme court finds it's a crime to be homosexual or to engage in unnatural sexual acts in Kenya! The Court, however, orders the NGOs Board to register the association of LGBTQs!
"How do you register an association of criminals? What a contradiction,” Kaluma wrote.
The ruling came amidst Kaluma's plans to criminalize homosexuality in Kenya through proposed legislation.
"I intend to bring legislation to criminalize and punish homosexuality and other unnatural sexual acts and to further criminalize the promotion of such acts in Kenya. The proposed law intended to further the provisions of article 45 (2) of the constitution of Kenya and to protect the family will not only consolidate all existing laws relating to unnatural sexual acts but also increase the penalty for those convicted of engaging or promoting the acts to imprisonment for life or commensurate sentence," Kaluma's letter to National Assembly Speaker Moses Wetangula read.
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 Organisation.
In its explanation, the board noted that the words, "gay and lesbians" in the proposed names were objectionable to the Board.
An LGBTQ flag. /FILE
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