Nerima Were | Is this the first step to a more inclusive Kenya? Eric Gitari v NGOs Coordination Board

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3 June 2015 – A recent judgment of the High Court of Kenya has advanced LGBTI rights by overturning the state regulator’s refusal to register an LGBTI NGO.  But Justice Isaac Lenaola’s cautionary remarks in Eric Gitari v NGOs Coordination Board and Others, handed down on 24 April 2015, are perhaps telling.  He states “this petition is not about whether homosexuality is lawful or not”.  This may indicate approaching this judgment with cautious optimism.  I am, however, getting ahead of myself.

The significance of this judgment is better understood against the backdrop of Kenya’s interesting constitutional history (explained in more detail in this pdf), with an undeniably long journey bringing us to the Constitution of Kenya, 2010 (pdf).  The promise of the 2010 Constitution cannot be understated, because of the journey we took as a country to arrive at this exact juncture.  Kenya gained independence in 1963, becoming a republic in 1964 — and a de facto one-party state.  Kenya remained under a dictatorship from 1964 to 1982, with opposition consistently eliminated, sometimes through political assassination.  In 1982 two significant events rocked the country: a coup attempt and the amendment of the Constitution that declared Kenya a de jure one-party state.  However, due to continued internal pressure and growing external pressure, this position was later reversed, with Kenya becoming a politically plural state in 1991.  The period after this was characterised by political and constitutional promise — perhaps more promise than reality. Despite repeated commitments that the matter was on the political agenda, the Constitution of Kenya was passed by referendum only in 2010 — almost two decades after we became a democracy.

The petition by Eric Gitari is centred on administrative law and freedom of association, but its effects are far wider.  Mr Gitari, a former member of the Kenya Human Rights Commission (‘KHRC’), sought to register an NGO under the names Gay and Lesbian Human Rights Council, Gay and Lesbian Human Rights Observancy, or Gay and Lesbian Human Rights Organization.  Its core objective was the advancement of human rights, specifically by addressing the violence and human rights abuses suffered by gay and lesbian people in Kenya. The state regulator, the NGOs Coordination Board, refused to register the proposed NGO, stating that the name is “repugnant to or inconsistent with any law or is otherwise undesirable”.  Mr Gitari brought his petition before the High Court of Kenya, Nairobi: Constitutional and Judicial Review Division on the grounds that the Board’s decision had violated his right to freedom of association as guaranteed by Article 36 of the Kenyan Constitution.

To appreciate the necessity for the organisation proposed by Mr Gitari, an understanding of the Kenyan climate around the lesbian, gay, bi-sexual, transgender, intersex and queer community (LGBTIQ) is essential.  A survey conducted in 2007 indicated that 96% of Kenyans felt that homosexuality should be rejected.  These are views held and fostered by the leadership in Kenya.  Former President Daniel Arap Moi, during his term, denounced homosexuality and described it as a scourge that goes against Christian teachings and African traditions.  More recently, the Deputy President William Ruto was quoted as stating, “The Republic of Kenya is a republic that worships God.  We have no room for gays and those others”.

Homophobia by the people and leadership of Kenya prompted a 2011 study by the KHRC called “The Outlawed Amongst Us” (available here).  A series of interviews with members of the lesbian, gay, transgender and intersex communities documented their experiences of homophobia.  A number of violations are experienced by these communities on a regular basis, including: harassment by state officials; stigma and exclusion from their families and society; physical violence; sexual violence, including rape by police officers and “corrective rape”; death threats; expulsion from learning institutions; poor access to health care; and medical research abuse.  The institutionalisation of homophobia is alarming, with police officers and health care workers using their positions to harass, blackmail and extort bribes from these communities.  The State, society and family all fail in offering a protective space.

Given Kenya’s history of homophobia and institutional marginalisation of sexual minorities, the position taken in the Gitari case by the NGO Board, supported by the Kenya Christian Forum, was predictable.  The reasons submitted for their opposition ranged from constitutional, legislative and religious. On the constitutional front, they argued that the right to equality (contained in Article 27 of the Constitution) does not include sexual orientation as a basis, and that the right to family (contained in Article 45) refers specifically to heterosexuals.  The second leg of their argument was that the Penal Code (pdf), through sections 162, 163 and 165, outlaws homosexuality.  The third leg linked religious principles in the Bible and Quran that raise moral objections to the proposed NGO.

Article 36(1) of the Constitution states that:

“Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.’’

Justice Lenaola’s judgment analyses the wording of this section, relying on the ordinary meaning of the words; jurisprudence on the provision both locally and internationally; and the provisions of international law.  The conclusion reached is that the words “every person” means every person in Kenya and does not exclude any persons based on their sexual orientation.

The judgment concludes that the Penal Code, as relied on by the NGO Board, has no relevance in this discussion.  The Penal Code, the Court held, does not criminalise homosexuality; at best, it criminalises certain sexual acts.  First, the wording of the Penal Code is ambiguous and confusing, with references made to conduct that is “indecent” or “against the natural order”, though without ever saying this includes homosexual conduct.  Second, it refers to sexual acts and not sexuality.  The sum total of a person’s sexual orientation is not sexual acts that they may or may not perform.  It is so much more than that.  Justice Lenaola was of a similar mind-frame, finding that the Penal Code does not criminalise homosexuality and therefore cannot be utilised as a justification to limit the right to free association.  This is a welcome finding, since the Code has been the basis of numerous objections to the legal recognition of homosexuality in Kenya.

On the question of equality, the judgment held that, while Article 27 does not expressly make reference to sexual orientation as a ground of non-discrimination, it neither excludes it nor creates a closed list: its list is prefaced by the word “includes”, indicating that other grounds for non-discrimination can and should be recognised.

Finally, the question of morality, where the Board relied on the Bible and Quran to justify its refusal.  The Court held that freedom of religion, protected by Article 32, “encompasses the right not to subscribe to any religious beliefs, and not to have the religious beliefs of others imposed on one.”  Therefore, to utilise religious tenets as the basis for limiting constitutionally guaranteed rights “would fly in the face” of what freedom of religion actually means.  Having reached these conclusions, the Court found in favour of the petitioner.

The significance of this judgment cannot be overstated, given its findings that: homosexuality is not criminalised in Kenya; freedom of religion cannot be relied on as an argument against the recognition and protection of homosexuality; and sexual minorities have constitutional rights that afford them protections.  Kenya’s constitutional history has been fraught with abuse, with the Constitution being used as a weapon of oppression to legitimate dictatorships as opposed to a document that protects citizens against the excesses of the state.  This is why this judgment signifies in no small part the realisation of the constitutional promise.  The NGOs Coordination Board attempted in this case to use the Constitution to unjustifiably and unreasonably limit the rights of the petitioner, relying on Articles in the Bill of Rights to justify its actions.  Without the Court’s intervention, Kenya would be repeating very dangerous history, where the Constitution becomes more weapon than shield.

I began by stating that this is a judgment that should be approached with cautious optimism — a sentiment I maintain.  This is especially so given that the judgment may still be appealed to the Court of Appeal.  Nevertheless, while accepting that this was a case on administrative law and freedom of association, it has the makings of a landmark judgment that declares in no uncertain terms that diverse sexual orientations are recognised in Kenya.

Nerima Were

About Nerima Were

Nerima Akinyi Were is from Nairobi, Kenya. She studied at the University of Pretoria, obtaining an LLB and an LLM in Corporate Law. She worked in South Africa for a number of years, clerking at the Land Claims Court and the Constitutional Court. She is currently pursuing her bar admission at the Kenya School of Law and working at an NGO focused on the right to health.