The recent decision by the Supreme Court of Kenya (S.C.O.K) on freedom of association by the Lesbian, Gay, Bi-sexual, Transgender & Intersex (LGBTQI) persons heralded an uncomfortable jurisprudential spur towards recognition of persons subscribing to the said community. The decision, which has caused sheer disquiet amongst inter alia religious bodies, politicians, teachers and parents promises to have far-reaching ramifications on the LGBTQI debate as we know it.
On February 24, 2023, in SCOK Petition No. 16 of 2019 NGO Co-ordination Board and Anor v Eric Gitari & Others, the majority bench (3:2) dismissed an appeal against an earlier Court of Appeal decision where the court had upheld the constitutional rights of the LGBTQI community to form an association.
In its ratio decidendi the majority bench of the SCOK ruled that every person including the members of the said community has the right to associate. The court further extended the definition of discrimination on grounds of ‘sex’ as espoused in Article 27 of the Constitution of Kenya, 2010 to include sexual orientation.
The implication of this decision is that any person subscribing to the LGBTQI community is free to form associations and further that they must not be discriminated against based on their preferred sexual orientation.
Although the SCOK clarified that the judgement was not a carte blanche license to LGBTQI relations but that it merely upheld their human right to associate and freedom from discrimination, the writer opines that led by our courts, our nation’s body politic is slowly accepting a westernized purview of contemporary sexual relations.
Our film and media industry as will be seen below is already a target. Our learners and young adults are both in and out of school having to contend with the incessant glamorization of LGBTQI lifestyles. Our courts have in the past upheld censure of films which promoted homosexuality but now seem to countenance freedoms such as association by such communities.
In limiting the enjoyment of freedom of expression Makau J in Wanuri Kahiu & another v CEO - Kenya Film Classification Board Ezekiel Mutua & others (2020) Eklr upheld an administrative decision restricting the film Rafiki which depicted and promoted homosexuality. The jury is still out as to whether faced with similar facts in present-day Kenya, a court would arrive at a similar determination.
Having aped, hook line and sinker directives such as the General Data Protection Regulations (G.D.P.R.) on data privacy from the European Union and the Americas, one would be forgiven to wonder whether, in the same fashion, our legal system will adopt as good law recent decisions such as Schalk and Kopf v Austria and Obergefell v. Hodges from the European Court of Human Rights and the Supreme Court of the United States of America (SCOTUS) respectively which have in the same gradual fashion legalized same-sex unions et.al.
Our last line of defense might be the active appeal in the Court of Appeal on decriminalization of sodomy and other unnatural acts against the order of nature.
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The writer, Edwin Munga Ndichu, is a partner at Kimani Musyimi & Ndichu Advocates LLP.