When a five-judge bench in the Court of Appeal sat to determine a contentious question on whether homosexuals can be allowed to form their own organization, they did not agree with each other.
Although that court, by a majority of three judges, upheld the decision of the High Court which had allowed gays and lesbians to form a non-governmental organization to champion their rights, judges displayed societal conservatives and pragmatists.
Even where the man’s law- the Constitution and the Acts of Parliament seemed not too convincing, judges turned to the Holy Bible to seek divine words on whether these humans interested in people of the same sex can congregate.
The rule of that court is that where four judges disagree, the presiding judge in a case will be the tie breaker. This time, the scale of justice leaned towards the homosexuals side as Justice Phillip Waki threw his weight against two judges – Martha Koome and Asike Makhandia decision that LGBTs have a right to associate.
On the minority side, Justice Daniel Musinga and Roslyn Nambuye leaned on the conservative thought that although the NGO in question ought to advance the rights of the homosexuals, theirs was a choice which was not protected by the Constitution and the laws enacted by Parliament.
While agreeing with non-governmental organization board’s argument that the High Court erred by allowing LBGTs to form their organization, Justice Musinga went tore apart Eric Gitari’s argument that the case was not about the institution of marriage and constitutionality of choosing to love a person of the same sex.
Justice Musinga first decreed that Mr. Gitari had jumped the gun as the NGO board’s Act provided for an appeal mechanism which he did not utilize.
According to the judge, the High Court erred in allowing the case in the first place.
“To the extent that the respondent did not follow the NGO Act, to appeal the case beofre the board, the high court ought to have ordered that it followed the procedure. To that extent the court had no jurisdiction to hear the case,” ruled Justice Musinga.
The other question that was presented before the judges was whether being homosexual is by choice or unexplained nature of attraction.
On this, Justice Musinga’s view was that Kenyans voted for a Constitution that only allows a man to a marry a woman. Out of opposite sex marriage, he said, a family which the Constitution recognizes as the roots of the country is formed.
He went ahead to rule that culture and traditions upheld by Kenyans abhors homosexuality.
“The Kenyan constitution protects the family and culture. There is a lot of pressure to adopt culture thought to be modern and fighting for the Constitution. Judiciary should act circumspectly while being asked to determine an issue that millions of Kenyans agreed upon.” Justice Musinga ruled.
He continued, “ The Constitution recognizes a family as the foundation of the constitution and marry the opposite sex. It was right to reject the registration of the organization formed by the respondent.”
Justice Nambuye took cue of the dissent saying that it was not for the courts to confer rights which had not been recognized in the Constitution and Acts of Parliament.
According to the lady judge, it was the work of Kenyans and Parliament to decide whether they would legalize homosexuality and same sex marriages in the country or not, through a referendum and legislation process.
She referred to her colleague’s judgement as an ‘inspirational exercise’ adding that courts in Kenya have no powers to make laws.
“There was want of jurisdiction. The Judicial pronouncement which accorded non-discrimination, has not crystallized that right. It ought to be through the Constitution or legislation that one can claim a right. It ought to be through a referendum or legislation. None can be conferred judicial pronouncement. This is merely an ‘inspirational right,’’ ruled Justice Nambuye.
The two judges fired their anti-gays and lesbians’ organization legal bullets by limiting themselves in the laws of the land.
However, they were outweighed by Justice Makhandia who wore a realist thought and lady justice Koome who ploughed through Kenya’s ills, including grand corruption to find out whether homosexuals were the culprits.
Justice Waki who was the tie breaker scrolled through God’s own words to find favour on what Justices Makhandia and Koome thought.
Justice Makhandia fronted his argument along the line that even through majority Kenyans were for opposite sex relationships and marriages, it was a fact that those who loved people from same sex were living in families and doing their daily businesses.
He referred homosexuals as ‘ a minority’ group.
“I must clarify that this appeal was not about sexual orientation or whether sexual orientation is right or not or an acquired behaviour. I agree that first respondent that his rights can only be entertained in accordance with the law,” ruled Justice Makhandia.
“All human beings must be respected irrespective to their orientation or sexual lives. The only test is whether those acts violate any law. In a society of Kenya there is need of tolerance. The first respondent rights were violated for declining to register the organization.”
Justice Koome in her verdict, she fronted a thought of my love my choice. According to the judge, homosexuals were also humans who deserve and equal rights even though they are assumed of having unpopular sexual orientation.
To buttress her school of thought, she went to the wardrobe to weigh whether gays would be forced to accept opposite sex relationships as the cardinal choice of the society.
She said every person has shoes fit to their size and cannot be forced to wear what all others wanted.
“Detesting gays and lesbians is outright discrimination. The board did not present aby evidence that evils like corruption and others are brought by LGBT. The institution of marriage is not threatened by this group. It is an institution that one enters out of choice. This is stereotyping people and expecting that same size fits all. If people are sinners God will deal for him. No one can judge them for Him,” ruled Justice Koome.
To seal the fate of LBGT’s organization, Justice Waki quoted the Bible- John 8:7- a verse in which Jesus taunted men who wanted to stone a prostitute to throw the first stone if they had not sinned.
After probing his heart, the senior judge said he would not be the first to condemn homosexuals. And to justify his thought, he said, if Kenya was follow Mosaic law, many would fall from volleys of rocks and stones for unpunished sins committed and overlooked by the society.
“The issue of persons who are LGBT is rarely discussed in public. It cannot be doubted that it an emotive issue. It is impossible for the country to close its eyes as if it does not have these people. We must therefore as a nation look at ourselves in the mirror ,that the people in the legislature, media and executive to openly discuss the fate of these people. I will not be the first to throw and hurt the LGBT,” ruled Justice Waki.
The wind on whether homosexuals should associate and if it should be legalized in the country started blowing in 2013.
A year later, in 2014, the High Court drew the first blood on the penal code by allowing homosexuals to freely form their organization.
After the Non-Governmental Organizations Coordination board rejected Eric Gitari’s prayers to have an organization by Lesbian, Gay, Bisexual, Trans, Intersex and Queer (LGBTIQ), he moved to court.
Both the church and the State opposed the case by Gitari. In separate arguments the church and Government argued that love between people of same sex was a crime and a sacrilege.
The Government presented its case through the Attorney General while Christians argued against the case through Kenya Christian Professionals Forum (KCPF).
The argument fronted by the Government was that Article 45 of the Constitution, limits marriage to people of the opposite sex.
KCPF believed that registering a homosexuals NGO would advance a cause against public policy and it would push to legalize criminality, that is homosexuality.
But Gitari would have his day after a three High Court judge bench composed of Justices Isaac Lenaola, Mumbi Ngugi and George Odunga found that like any other persons in the country, the group had the right to associate with people of similar course and belief.