Supreme Court judges
Supreme Court Judges

The Supreme Court's approval of the LGBTQ (lesbian, gay, bis£xual, transgender, and queer) group's request to legally form their own group represents a victory for these people.

The judgement of the High Court and the Court of Appeal that the NGO Coordination Board breached the fundamental freedom of association by refusing to create an account for an NGO that strongly supported the privileges of the LGBTQ community was upheld in a landmark judgement by the apex court. This ruling was upheld in a majority judgement by the Supreme Court.

In this particular instance, Eric Gitari had made an application to register his non-governmental organisation (NGO) with the NGO coordination board, which was ultimately denied. He brought his case to the Supreme Court, which granted him permission to register his nonprofit organisation.

The NGO Coordination Board filed an appeal with the Court of Appeal in Nairobi to contest the entirety of the High Court's decision and decree.

The appeal was rejected by the Court of Appeal in 2019 with a majority vote of 3-2, therefore upholding the ruling that was issued by the High Court.


Is LGBTQ allowed in Kenya?

The board was dissatisfied with the Court of Appeal's decision and filed an appeal with both the Supreme Court and the United States Court of Appeals, where even the majority of the justices ruled against it by a 3-2 vote.

The Supreme Court justices Njoki Ndung'u and Smokin Wanjala, as well as deputy chief justice Philomena Mwilu, shared the popular opinion that the Board had violated the Gitari's constitutionally protected right to freedom of association.

"The decision made by the NGO Coordinating Board was biased... The judges came to the conclusion that it would break the law to restrict the freedom to join by denying the registration of an organisation merely because of the gender expression of the people who applied for membership in the group."

The judges pointed out that since the organisation was denied registration, the individuals were found guilty before they broke the legislation that makes hom0s£xual s£xual activity illegal.

William Ouko and Mohammed Ibrahim, two Supreme Court judges who disagreed with the majority opinion, said that the board did not break any rights because freedom of association is not an unalienable right and could be limited.

Justice Ibrahim pointed out that as long as Sections 162, 163, and 165 of the Penal Code remain perfectly legitimate edicts of the law, the board was unable to have booked an identity or given permission for the establishment of an association with terms that appear to suggest or whose designated objectives are in endorsement of behaviour that is against the law or clearly and explicitly prohibited by it. Both of these things would have been permissible for the board to do.

For his part, Judge William Ouko pointed out that Kenyans and the people who drafted the constitution did not intend for the words "association of any sort" to indicate organisations of all types when they included it in Article 36.

"It most emphatically does not include organisations whose actions are contrary to the Constitution or contrary to the law, or those whose goals may offend representatives of a specific community, religious, ethnic, or racial groupings, or whose name is obscene, offensive, bigoted, disparaging, or defamatory; or on that adopt the name of a prohibited group," he said."It also does not include associations whose purposes may offend those who belong to a specific community, such as a religious one."

According to what he stated, the board is given the authority to use its judgement and decline to authorise any group if the organisation does not fulfil specific standards that are outlined in the legislation.

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