Supreme Court: Gays and lesbians have a right of association

Supreme Court of Kenya judges at a past function. [File, Standard]

The Supreme Court of Kenya on Friday, February 24 ruled that the NGO Board's decision to bar homosexuals from forming recognised groups is discriminatory.

The court stated that despite homosexuality being illegal in Kenya, members of the LGBTQ still have a right of association.

Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Njoki Ndung'u ruled in the majority side on the issue.

Justice Mohamed Ibrahim and William Ouko dissented, stating that homosexuals shouldn't be allowed to form recognised associations in Kenya.

The ruling now gives members of the LGBTQ community the power to seek formal recognition by the Non-Governmental Organizations Co-ordination Board.

On November 23, 2021 the Supreme Court heard the case challenging decisions of the High Court and Court of Appeal to allow the Kenyan National Gay and Lesbian Human Rights Commission (NGLHRC) to be officially registered as a non-governmental organisation (NGO).

In 2012, Eric Gitari, the former Executive Director of NGLHRC, challenged the Kenya NGO Coordination Board's refusal to allow him to apply for registration of an NGO under a name containing the words "gay" or "lesbian".

The judges ruled in his favour at the High Court in 2015 and again at the Court of Appeal in 2019.

An appeal was, consequently, lodged at the Supreme Court.

Sections 162 (a) and (c), 163 and 165 of the Kenyan Penal Code establish several criminal offences, one of which, having "carnal knowledge against the order of nature", is punishable by up to 14 years in jail.

While Kenyan law criminalises same-sex acts between men, these laws have been used to target lesbian, gay, bisexual and transgender (LGBT) people.