It was another win for the minority gays and lesbians groups after the Supreme Court dismissed a bid by Homabay Town MP Peter Kaluma to ban their associations.
Justices Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu and William Ouko declined to review their earlier decision Lesbians, Gays, Bisexuals, Transgender and Queer (LGBTQ) people opportunity to form associations to champion their rights.
“We are satisfied that the applicant has not demonstrated to our satisfaction that the decision was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its judgment under a mistaken belief that the parties had consented to warrant a review of the same,” ruled the judges.
At the same time, the apex court judges ruled that the MP was not a party to the dispute that led to their decision and had no locus standi (right to appear before a court) to file the case for a review of their decision.
They ruled that the court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties.
“Consequently, we find that the applicant is not competent to seek a review of the judgment under reference. Being and advocate of the High Court and a Member of Parliament, he ought to have known that his application was misconceived,” ruled the judges.
The apex court had in February allowed LGBTQ minority groups to form associations to champion their rights, ruling that it is discriminatory for the Non-Governmental Organizations (NGO) Coordination Board to deny them that right.
The majority judges, Mwilu, Wanjala and Ndungu ended the 11-year dispute when the declared that by refusing to register LBGTQ associations, the persons were convicted before they contravened the law.
They however ruled that the decision did not invalidate Section 162 of the Penal Code which criminalizes LGBTQ, ruling that all persons whether heterosexual, lesbian, gay, intersex or otherwise, will be subject to sanctions if they contravene the law by engaging in unnatural acts.
Justice Ibrahim and Ouko however dissented the majority opinion ruling that the NGO Coordination Board were justified to deny registration of associations and organizations which champions activities which are banned and illegal.
It is the decision which prompted the MP to file for a review arguing that the judgment usurped the sovereign power of the people, the legislative role and authority of Parliament and purported to amend Article 27(4) of the Constitution.
According to Kaluma, the Supreme Court Judges disregarded the views of the people of Kenya on ‘sex’ and ‘gender’ by declaring that people of the same sex can be allowed to form association to champion for their rights.
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He added that the decision had opened the door wide to registration of associations, entities and organisations whose naming and or objects are contrary to the law and inconsistent with public interest.
The judges however ruled that the MP’s application was disguised to look like an appeal of their decision and does not fall within the confines of the parameters prescribed for review.