How it began: Long road for homosexuals in justice quest

Members of the gay and lesbian community outside Milimani courts yesterday. [George Njunge, Standard]

Debate on whether homosexuals should be allowed to openly associate and if same sex should be legalised started in 2013.

A year later, in 2014, the High Court drew first blood, ruling that homosexuals were free to form an association.

The ruling was the result of court proceedings after the NGOs Coordination Board rejected Eric Gitari’s prayers to have register an organisation for Lesbians, Gays, Bisexuals, Trans, Intersex and Queers (LGBTIQ). Gitari then moved to court.

On or about February 2, 2013, Gitari sought to reserve with the board, an organisation named Gay and Lesbian Human Rights Council; or Gay and Lesbian Human Rights Observancy, or Gay and Lesbian Human Rights Organisation.

He was advised by the board that all the proposed names were unacceptable and should be reviewed.

Gitari then changed the name to Gay and Lesbian Human Rights Commission; or Gay and Lesbian Human Rights Council or Gay and Lesbian Human Rights Collective for reservation.

Together with the new names, he sent a letter to the board demanding to know why his application had been rejected. 

Through a letter dated March 25, 2013, the board replied to Gitari’s advocates, advising that sections 162, 163 and 165 of the Penal Code criminalises gay and lesbian liaisons, and that this was the basis for rejection of the proposed names.

This paved the way for the umbrella organisation, National Gay and Lesbian Human Rights Commission (NGLHRC) which is now seeking to legalise homosexuality in the country, to move to court.

The church and the State opposed Gitari’s case. In separate arguments, they argued that love between people of same sex was a crime and sacrilegious.

The government presented its case through the Attorney General, while Christians argued their case through Kenya Christian Professionals Forum (KCPF). The government’s argument was that the Constitution limits marriage to people of opposite sex.

KCPF said registering a homosexuals NGO would advance a cause against public policy and push for the legalisation of criminality, that is homosexuality.

But Gitari would have his day after three High Court judges - Justices Isaac Lenaola,  Mumbi Ngugi and George Odunga - found that the group had the right to associate with people of similar cause and belief.

According to the bench, the country was burying its head in the sand as gays and homosexuals exist among the people. The judges were of the view Gitari would still have gone to find unrelated names like “Cattle Dip Promotions Society” but still promote LGBTs interests.

“The board may have difficulties accepting the term and reality, but the terms refer to persons who, like other citizens, have the right to freedom of association,” the judges ruled on April 24, 2015. This controversial judgement would end up in JusticeLenaola’s interview tray on October 12, 2016 for a slot in the Supreme Court.

His reply to the JSC was that the Constitution champions for the rights of every Kenyan, including homosexuals, bisexuals and transgender people.