TO WHAT EXTENT CAN YOU BE GAY IN KENYA? Exploring the Supreme Court's Judgment in Petition No. 16 of 2019

INTRODUCTION: WHY ARE YOU GAY?

"WHY ARE YOU GAE?" (sic) - a seemingly innocent yet profoundly insensitive question that echoed through the airwaves in a Ugandan morning show back in 2012. This controversial inquiry, posed by a Ugandan journalist to a gay activist, not only underscored the rampant lack of understanding but also laid bare the challenges faced by LGBTQ+ individuals across Africa. As this infamous interview snippet found its place in the "International Catalogue of Memes," it inadvertently highlighted the need for informed discussions and thoughtful reflections on LGBTQ+ rights within the African context.

Fast forward to Kenya in 2023, where the Supreme Court's Judgment in Petition No. 16 of 2019 NGOs Co-ordination Board v EG & 4 Others; Katiba Institute (Amicus Curiae) [2023] KESC 17 (KLR) marked a significant moment in the country's legal landscape regarding LGBTQ+ rights. This pivotal case prompted an examination of the extent to which individuals can openly express their sexual orientation and be protected by the law. In this article, we delve into the nuanced details of this judgment, exploring its implications for LGBTQ+ rights in Kenya and reflecting on the broader implications for the region.

Join me on this journey as we dissect the legal, societal, and human rights dimensions of the Supreme Court's Judgment, and contemplate the ongoing pursuit of equality and acceptance within Kenya's evolving socio-legal environment. Through a thoughtful analysis of the judgment's context, content, and aftermath, we aim to gain a deeper understanding of the challenges and opportunities faced by LGBTQ+ individuals and their allies as they strive to create a more inclusive society.

LGBTQ+ RIGHTS IN KENYA: A LEGAL DILEMMA

In Kenya, as in many parts of the world, LGBTQ+ individuals face a multitude of challenges stemming from societal norms, cultural beliefs, and legal restrictions. While the Kenyan Constitution guarantees the right to privacy, dignity, and equality, it falls short of explicitly addressing same-sex relationships. Article 45(2) expressly permits heterosexual marriages and unions, yet there is no direct reference to the rights of LGBTQ+ individuals.

The Constitution, however, does offer a foundation for potential protection. Article 27 prohibits discrimination based on various factors, including "sex" which could be interpreted to include sexual orientation. Similarly, Article 28 safeguards human dignity, and Article 29 guarantees the right to freedom of conscience, conviction, opinion, and expression. These provisions create space for arguments in favour of LGBTQ+ rights, despite the absence of explicit mention.

The Kenyan Penal Code on the other hand criminalizes "carnal knowledge against the order of nature" under Section 162. This provision has often been interpreted as criminalizing consensual same-sex sexual activities among adults and carries a maximum penalty of 14 years in prison. Additionally, Section 165 criminalizes "indecent practices between males" with a similar maximum penalty.

These laws are remnants of colonial-era legislation inherited from British colonial rule and have been widely criticized for their impact on the rights and well-being of LGBTQ+ individuals in Kenya. More often than not these laws have led to discrimination, harassment, and violence against LGBTQ+ individuals and communities.

However, it is important to note that attitudes and laws can change over time. There have been ongoing discussions and legal challenges about the decriminalization of homosexuality in Kenya. Activists and Human Rights Organizations have been working tirelessly towards repealing these laws, arguing for the protection of LGBTQ+ rights.

THE BATTLE FOR LGBTQ+ RIGHTS: GITARI'S LEGAL FIGHT

Mr. Eric Gitari, a Kenyan lawyer and LGBTQ+ advocate, has been at the forefront of the battle for LGBTQ+ rights in Kenya. His efforts to register an NGO aimed at defending the rights of gay and lesbian individuals led to a protracted legal battle against the Non-Governmental Organizations Co-ordination Board (NGO Board). The central issue revolved around the rejection of proposed NGO names containing the words "gay" and "lesbian".

The High Court initially ruled in favour of Mr. Gitari, affirming his right to freedom of association. The Court of Appeal again echoed this decision, emphasizing the protection of LGBTQ+ individuals under Article 36 of the Constitution. Eventually, the case reached the Supreme Court of Kenya, where the dispute focused on whether the NGO Board's rejection violated Mr. Gitari's constitutional rights.

The Supreme Court also upheld the lower courts' decisions, emphasizing that the refusal to register an NGO solely based on sexual orientation is unconstitutional. The Court reasoned that LGBTQ+ individuals are protected by Article 36's guarantee of freedom of association and that discrimination based on sexual orientation contradicted fundamental constitutional principles.

SUPREME COURT'S LANDMARK DECISION: Petition No. 16 of 2019 NGO's Co-ordination Board v EG & 4 Others [2023] KESC 17 (KLR)

In a landmark case that reverberated through Kenya's legal landscape, the Justices of the Supreme Court faced a complex decision that reverberated beyond its courtroom walls. At the heart of the matter was the determination of the extent to which LGBTQ+ individuals could express themselves freely and associate openly in the country. The judgment in Petition No. 16 of 2019 marked a turning point in the ongoing dialogue surrounding LGBTQ+ rights in Kenya.

Three Key Issues Before the Court

The Supreme Court grappled with three pivotal issues that held profound implications for the LGBTQ+ community:

1. Exhaustion of Administrative Remedies: The first issue hinged on whether Mr. Eric Gitari was required to pursue internal remedies under the NGO Co-ordination Act before resorting to court action.
2. Violation of Article 36 of the Constitution: The second issue pertained to whether the decision of the Executive Director of the NGO Co-ordination Board violated Article 36 of the Constitution, which guarantees the right to freely associate.
3. Violation of Article 27 of the Constitution: The third issue revolved around whether the decision of the NGO Co-ordination Board was discriminatory and contravened Article 27 of the Constitution, which prohibits discrimination on various grounds, including "sex."

Supreme Court Findings and Implications

1. Exhaustion of Administrative Remedies: The Court observed that the dispute centred around the Board's refusal to accept the proposed name of an NGO, and it held that the internal remedies provided by the NGO Co-ordination Act did not apply to this scenario. The Court aligned with the idea that such administrative actions couldn't be subjected to internal conflict resolution mechanisms.
2. Violation of Article 36 of the Constitution: The Court concluded that the Constitution does not seek to restrict LGBTQ+ individuals' right to associate freely. The Board's refusal to register an organization solely based on the applicant's sexual orientation was deemed unconstitutional, aligning with the principles of inclusivity and human rights.
3. Violation of Article 27 of the Constitution: The majority judgment maintained that "sex" as mentioned in Article 27 encompasses various sexual orientations, rejecting the Board's contention that sexual orientation isn't listed as a ground for discrimination. The Court emphasized that the rejection of the names based on sexual orientation was inconsistent with the values of equality and non-discrimination.

Dissenting Voices and Their Perspectives

Justice Mohammed Ibrahim and Justice William Ouko expressed differing opinions on the issues:

• Justice Mohammed Ibrahim dissented on the grounds of exhaustion of administrative remedies, arguing that the reservation of a name isn't appealable under the NGO Co-ordination Act. He also disagreed with the majority's findings regarding the violation of Article 36 and Article 27, suggesting that the Board's actions were lawful given the prevailing penal system.

• Justice William Ouko concurred on the exhaustion of administrative remedies, emphasizing that Mr. Eric Gitari wasn't obliged to use internal resolution procedures. However, he disagreed with the majority's stance on Article 36 and Article 27, suggesting that the Board's actions were within the bounds of reasonableness and procedural fairness.

In Conclusion

This Supreme Court decision underscored the importance of inclusivity, equality, and non-discrimination, even in the face of societal biases and legal restrictions. While the Court did not directly challenge the constitutionality of Sections 162, 163, and 165 of the Penal Code, which criminalizes certain sexual acts between individuals of the same sex, it laid the groundwork for potential future legal battles aimed at decriminalization.

CONCLUDING THOUGHTS AND RECOMMENDATIONS

The Supreme Court's Judgment in Petition No. 16 of 2019 marked a significant step towards recognizing and protecting LGBTQ+ rights in Kenya. While the decision did not explicitly address the criminalization of homosexuality, it affirmed the constitutional protection of LGBTQ+ individuals' rights to association and dignity. The judgment serves as a foundation for further advocacy and legal action to challenge existing laws that discriminate against and criminalize LGBTQ+ individuals. As legal discourse continues to evolve, it is imperative to reflect on the nuances of the judgment, its implications for equality, and the ongoing journey towards a more inclusive society. The judgment also serves as a reminder that the legal arena plays a crucial role in shaping societal attitudes and dismantling barriers to justice and freedom.

In light of these developments, it is recommended that:

1. Advocacy Efforts Continue: Activists, legal experts, and civil society organizations should continue their efforts to raise awareness about LGBTQ+ rights and challenge discriminatory laws. Public discourse and education are vital tools for changing societal perceptions and fostering acceptance.
2. Legal Reform Initiatives: Building on the Supreme Court's ruling, there is an opportunity to push for legal reforms that decriminalize homosexuality and protect LGBTQ+ individuals from discrimination. Engaging with policymakers and lawmakers is essential in advancing this cause.
3. International Support: The global community, including international organizations and diplomatic missions, can play a role in supporting LGBTQ+ rights in Kenya. Diplomatic pressure and collaboration on human rights initiatives can encourage positive change.
4. Grassroots Engagement: Engaging communities at the grassroots level, including cultural and religious leaders, can facilitate open conversations about LGBTQ+ rights and dispel misconceptions. Promoting understanding and empathy is crucial for societal transformation.

In conclusion, the Supreme Court Judgment in Petition No. 16 of 2019 reflects both progress and challenges in the pursuit of LGBTQ+ rights in Kenya. The battle for full equality continues, and it requires collective efforts of individuals, communities, legal experts, and policymakers to create a more inclusive and accepting society for all. So, to what extent can you be gay in Kenya? Meeh!