Draft:LGBTIQ+ Rights in Kenya Post Supreme Court Ruling on PETITION NO. 16 of 2019

LIVE DOCUMENT BY MIKE MURITHI

Homosexuality has existed in Africa since time immemorial. However, a majority of Africans believe that homosexuality was a Western import - which was allegedly brought about by Christianity during the advent of the Christian missionaries in the continent. African culture is no stranger to gay acts and behaviors. The late Robert Mugabe, President of Zimbabwe, Daniel Arap Moi, second president of Kenya, Yoweri Museveni, president of Uganda, Sam Nujoma former president of Namibia, Goodluck Jonathan former President of Nigeria, and Yahya Jame, former president of the Gambia have been most vocal in matters regarding the criminalization of homosexuality in Africa and have insisted on strict enforcement of anti-homosexual legislation. In 1998, Robert Mugabe destroyed the political influence of the Zimbabwe ex-president Canaan Banana , a former Methodist Reverend, with a conviction of sodomy charges. Though King Mwanga II of the Buganda kingdom was the most prominent gay personality of his time, he was definitely not alone.

While the 1994 South African constitution listed sexual orientation as among the protected rights, 71 countries in the world have homosexuality stipulated in the list of offenses punishable by law, among which, Kenya (as of April 2022). It's also worthwhile to note that no Muslim-majority country has repealed its Anti-LGBTQ laws. Dominica and Malawi* however suspended enforcement of their anti-homosexuality laws.

In May of 2023, the Supreme Court of Namibia ruled foreign same-sex marriages must be recognized equally to heterosexual marriages. LGBT anti-discrimination laws exist in seven African countries: Angola, Botswana, Cape Verde, Mauritius, Mozambique, Seychelles, and South Africa. While governments are increasingly enforcing the law, many legislators have recently proposed stricter sentences for same-sex activity. From 2009 and 2014, Uganda's Anti-Homosexuality Act, which in its original form would have allowed the death sentence for some same-sex crimes, attracted international attention.

In addition to criminalizing homosexuality, Nigeria has enacted legislation that would make it illegal for heterosexual family members, allies, and friends of LGBT people to be supportive. According to Nigerian law, a heterosexual ally "who administers, witnesses, abets or aids" any form of gender non-conforming and homosexual activity could receive a 10-year jail sentence.

Since 2011, some developed countries have been considering or implementing laws that limit or prohibit general budget support to countries that restrict the rights of LGBT people. Joe Biden indicates that anti-homosexuality laws in Africa are shameful and are an alarming trend of human rights abuses and corruption in Uganda. He also states that the dangers posed by democratic backsliding and implementation of anti-homosexuality laws are a threat to everyone residing in the countries, including U.S. government personnel, the staff of US implementing partners, tourists, members of the business community, and others. Joe Biden indicates that such countries that propel anti-gay legislation sabotage the gains made by the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) and other forms of assistance and investments and also negatively affect the countries' eligibility for the African Growth and Opportunity Act (AGOA) and other diplomatic strains that include the application of sanctions and restriction of entry into the United States against anyone involved in serious human rights abuses or corruption.

In spite of this, many African countries have refused to consider increasing LGBT rights, and in some cases have drafted laws to increase sanctions against LGBT people. Nevertheless, most scholarship and research demonstrates that homosexuality has long been a part of various African cultures.

Widespread Violence Against LGBTQ+

“Being a lesbian or a gay man is a non-issue. Being harmed because of who we are is a huge issue.” —Lorna Dias, Executive Coordinator of the Gay and Lesbian Coalition of Kenya, Nairobi.

Apart from South Africa, many African countries still don’t protect the LGBTQ community, despite some of them having legalized same-sex relations. Members of the LGBTQ community continue to face torture, rape, social isolation, and murder.

There has been a series of documented violence cases against the members of the LGBTQ community in Kenya. In 2022, Sheila Adhiambo Lumumba a 25-year-old non-binary lesbian was murdered at her home in Nyeri County. Her post-mortem revealed that she was sexually assaulted and hit on the head with a blunt object, and stabbed on the face, chest, neck, and eyes. By the start of the Lesbian Visibility week that ran from April 25th to May 1st 2022, the #JusticeForSheila was trending in Kenya.

On 4th January 2023, another member of the LGBTQ community was tragically murdered in a case of Intimate Partner Violence (IPV). Edwin Chiloba's partner, 24-year-old Jackton Odhiambo was accused of killing Edwin and dumping his body in a metal box along a road in the Kapsaret area, Uasin Gishu County. The police had also previously linked 5 other suspects with the murder of the activist. Edwin had made his name by constantly calling out on the discriminative laws imposed on LGBTQ members in Kenya and especially the Penal Code of 1930. According to police reports. Edwin was smothered to death before his body was found.

Beyond just other ramifications, deeply-entrenched social and cultural norms heavily discriminate against the LGBTQ+ community in Kenya. A 2019 survey by the NGLHRC found that 56% of Kenyans believe homosexuality should not be accepted by society. Homosexuality is often viewed as taboo, un-African, and a violation of religious and traditional values espoused by influential groups like the Kenyan National Council of Churches.

This pervasive stigma has resulted in the marginalization, harassment, and even violence towards LGBTQ+ individuals. Human rights groups like Amnesty International have documented cases of "corrective rape," physical attacks, blackmail, and discrimination in accessing healthcare, employment and housing. Additionally, acts of violence perpetrated against LGBTIQ+ individuals in Kenya by state actors and non-state actors include but are not limited to arbitrary detention, sexual assault, physical assault, forced anal examinations, attempted conversion therapy practices, extortion, and other forms of cruel, inhuman or degrading treatment.

As the debate around LGBTQ+ rights continues to unfold in Kenya, the lived experiences of the country's gay community, documented in reports by Human Rights Watch, highlight the immense challenges they face in seeking acceptance, equality, and freedom from discrimination in a largely hostile social and legal environment.

The Law & Homosexuality in Kenya

Being gay in Kenya is not only outlawed, but it is also widely stigmatized and shunned. Despite sustained efforts by activists like Eric Gitari and organizations like the Gay and Lesbian Coalition of Kenya to decriminalize same-sex relations and protect the rights of sexual minorities, progress has been slow. A 2019 ruling by the Kenyan High Court upheld the existing laws against homosexuality, citing the need to preserve cultural values and moral standards.

Kenya, like many African nations, has a complex and often controversial relationship with homosexuality. Despite increased awareness and advocacy efforts by LGBTQ+ rights groups like the National Gay and Lesbian Human Rights Commission (NGLHRC), same-sex relations remain criminalized and highly stigmatized within Kenyan society. The legal framework surrounding homosexuality in Kenya is rooted in colonial-era laws inherited from the British. Section 162 of the Penal Code, which dates back to 1930, prohibits "carnal knowledge against the order of nature," which has been widely interpreted to outlaw homosexual acts. Those found guilty can face lengthy prison sentences of up to 14 years.

Dissecting the Contents of the Supreme Court of Kenya Determination on Petition No: 16/2019

Civil society organizations in Kenya and East Africa are grappling with the bitter-sweet effect of the Supreme Court of Kenya's (SCK) determination on the sexual and gender minority and Key Populations at large. The public discussion of LGBTQ+ has been off the mainstream grid and thus allowing for substantive and undisrupted gains in programming for Sexual & Reproductive Health and rights (SRHR) for the LGBTIQ in Kenya.

"It is our opinion that the use of the word "sex" under Article 24(4) does not connote the act of sex per se but refers to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further, we find that the word "including" under the same article is not exhaustive, but only illustrative and would also comprise "freedom from discrimination based on a person's sexual orientation" - Supreme Court of Kenya Majority opinion, NGO Board v Eric Gitari & Others

This case was lodged against the NGOs Co-ordination Board's decision to refuse registration of the National Gay & Lesbians Human Rights Commission (NGLHRC) as a non-governmental Organization (NGO) by Eric Gitari, the 1^st Respondent, and others.

Background of the Case

1. The petition of appeal before the Supreme Court was dated 6^th May 2019. The appeal challenged the Judgment of the Court of Appeal (Waki, Nambuye, Koome, Makhandia, and Musinga, JJA) at Nairobi in Civil Appeal No. 145 of 2015 delivered on 22^nd March 2019, which dismissed the appeal in the High Court decision Eric Gitari vs Non-Governmental Organisations Co-ordination Board & 4 Others, Petition No.440 of 2013. The Court of Appeal (by a majority of 3:2) affirmed the decision of the High Court that had declared that the Non-Governmental Organizations Coordination Board (NGO Co-ordination Board) had contravened the provisions of Article 36 of the Constitution in failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice.
2. The 1st respondent sought to reserve for registration of an NGO in any of the names: Gay and Lesbian Human Rights Council; Gay and Lesbian Human Rights Observancy; Gay and Lesbian Human Rights Organization; Gay and Lesbian Human Rights Commission; Gay and Lesbian Human Rights Council and Gay and Lesbian Human Rights Collective. However, the appellant’s Executive Director declined to approve any of the proposed names on the grounds that Sections 162, 163, and 165 of the Penal Code criminalize Gay and Lesbian liaisons. The 1^st respondent’s efforts to request a review of the decision from the NGO Coordination Board bore no fruit.
3. Aggrieved by the appellant’s decision, the 1st respondent filed High Court Petition No. 440 of 2013 alleging that the appellant’s refusal to register the intended NGO not only contravened the provisions of Articles 20(2), 31(3), 27(4), 28 and 36 of the Constitution but also those of the Non-Governmental Organizations Co-ordination Act (the NGO Coordination Act).
4. The trial court (Lenaola, J (as he then was), Ngugi, J (as she then was), and Odunga, J (as he then was) delineated two main issues and several other collateral issues for determination. The primary issues for determination were:

   i. whether LGBIQ has a right to form associations in accordance with the law; and ii. if the answer is in the affirmative, whether the decision of the Board not to allow the registration of the proposed NGO because of the choice of name is a violation of the rights of the 1^st respondent under Articles 36 and 27 of the Constitution.

5. On 24^th April 2015, the court rendered its determination. Before tackling the main issues, the court addressed itself on the issue of whether there was failure by the 1^st respondent to exhaust any internal remedies before approaching the court. In this regard, the trial court observed that in rejecting the names, the appellant was not dealing with registration of the proposed NGO but with the question of whether the name(s) that the 1^st respondent sought to reserve for the proposed NGO were acceptable. Therefore, the court held that the refusal to reserve the proposed names was not “a decision” contemplated under Section 19 of the NGO Coordination Act under which an appeal to the Minister lies. The trial court also found that the impugned decision was purely administrative and was made pursuant to the NGO Regulations, and not the NGO Coordination Act.

   To this end, the court concluded that there was no statutory prescribed internal remedy that was available to the 1^st respondent and that the court could not close its doors on him for failure to exhaust an internal remedy that did not apply to his circumstances

6. The trial court held that the State is restricted from determining which convictions and moral judgments one can hold, and that as per the Constitution, the right to freedom of association is not selective, but is guaranteed to, and applies to everyone. The learned Judges also, observed that it did not matter if the views of certain groups or related associations are unpopular or unacceptable to certain persons outside those groups or members of other groups. Moreover, the court observed that if only people with views that are popular were allowed to associate with others, then the room within which to have a rich dialogue and disagree with the government and others in society would be thereby unreasonably limited.
7. The trial court observed that it was apparent that the appellant took issue with both the name and the objects and purposes, of the 1st respondent’s proposed NGO because it deemed the name to be furthering illegality. Therefore, the court concluded that whatever mode the Board wished to place in rejecting the name sought to be used by the 1st respondent, its effect was to reject the 1st respondent’s application to register an association to advocate for the rights of LGBTIQ. Ultimately, the court found that the appellant’s action constituted an infringement of the 1st respondent’s right to freedom of association.
8. On the issue of whether the limitation of the 1st respondent’s right to freedom of association was justifiable in a free and democratic society, the trial court recognized that the right to freedom of association is not absolute and can be limited. However, such limitation must be in accordance with Article 24 of the Constitution. Accordingly, the court faulted the appellant’s reliance on Sections 162 and 163 of the Penal Code to justify its decision, as those sections do not criminalize homosexuality or the state of being homosexual; the law only refers to certain sexual acts which are ‘‘against the order of nature.’’ Likewise, the learned Judges observed that the fact that the State does not prosecute people who confess to being lesbians and homosexuals in this country is a clear manifestation that such sexual orientation is not criminalized. To that end, the court found that the Penal Code does not criminalize the right to freedom of association of people based on their sexual orientation nor does it contain any provision that limits the freedom of association of persons based on their sexual orientation. The court concluded therefore that the appellant’s reliance on the provisions of the Penal Code to limit the 1st respondent’s freedom of association was untenable.
9. With regard to the right to non-discrimination, the trial court noted that both the Board and the High Court are constitutionally mandated when applying the Constitution to give effect to the non-discrimination provisions in Article 27. Further, it observed that an interpretation of non-discrimination that excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights, and non-discrimination.
10. Finally, the trial court found the petition had merit and declared the words ‘every person’ in Article 36 of the Constitution to include all persons living within the Republic of Kenya despite their sexual orientation. The Court further declared that the appellant had contravened the provisions of Article 36 of the Constitution and, that the 1^st respondent was entitled to exercise his constitutionally guaranteed right to freedom of association. Consequently, the High Court issued an order of Mandamus directing the Board to strictly comply with its constitutional duty under Articles 27 and 36 of the Constitution, and the relevant provisions of the NGO Co-ordination Act.

Definition of: a (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. "Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.

The Court of Appeal Battle - Civil Appeal No. 145 of 2015

Dissatisfied with the judgment of the High Court, the appellant (NGO Board) lodged an appeal at the Court of Appeal in Nairobi, Civil Appeal No. 145 of 2015, challenging the whole judgment and decree of the High Court. The appellant raised eleven grounds stating that the learned Judges erred in law and in fact:

1. By identifying lesbian, gay, bisexual, transgender, and queer as innate attributes of various persons without any or any sufficient evidence in support, and by failing to recognize that these attributes were the consequences of behavioral traits which the society has a right and duty to regulate for the sake of the common good;
2. When they held that the refusal to register the 1st respondent’s proposed NGO was not a decision contemplated under Section 19 of the NGO Act for which an appeal lies to the Minister
3. In failing to recognize the limits of the right to freedom of association and the fact that the right is enjoyed by persons and not based on any attribute they may determine for themselves;
4. In finding that the right to freedom of association extended to the proposed NGO of the 1^st respondent;
5. By adopting and applying ratio from South Africa without recognizing the distinct and divergent constitutional background of the said country;
6. By disregarding the religious preference in the Constitution and the preambular influence that must be applied in interpreting and applying the various constitutional provisions in issue;
7. By failing to uphold the provisions of the Penal Code that outlaw homosexual behavior, as well as any aiding, abetting, counseling, procuring and other related and inchoate crimes;
8. By effectively reading into the Constitution’s non-discrimination clause the ground of sexual orientation;
9. By misunderstanding and misapplying the limitation clause in Article 24 of the Constitution;
10. By rejecting the legitimate role of the moral purpose or public policy test in determining whether to accept registration or proposed applications for associations of persons; and
11. By granting the declarations sought and the order of mandamus in the Decree appealed against.

Having considered the issues for determination, the Court of Appeal on 22^nd March 2019, by a majority of 3-2, dismissed the appeal, affirming the judgment of the High Court. The issues for determination delineated by the court were whether the 1^st respondent had an obligation to exhaust the remedies available under the NGO Coordination Act or whether the 1^st respondent’s petition before the High Court was premature; whether in rejecting the reservation of the name, the Director of the appellant violated Article 36 on the 1^st respondent’s right to freedom of association and from discrimination and equality under Articles 36 and 27 of the Constitution respectively, and whether the right under Article 36 is a limited right pursuant to Article 24.

Responses By Duty Bearers to The Supreme Court Ruling

Christian Religious Leaders' Response

Christian religious leaders were among the first opposers of the declaration of the right of association for LGBTQ+-led collectives in Kenya. Even though the constitution recognizes Kenya as a secular state, Christianity is one of the major religions in the county with a massive congregation. Christ is the Answer Ministries (CITAM) commended the judges who had dissenting opinions on the matter and that the Bible classifies homosexual behavior as a sin because it is disobedient to scriptural teachings.

The catholic church has pronounced itself that it will not bless same-sex marriages.

The Vatican Congregation for the Doctrine of the Faith, which is responsible for defending the Catholic doctrine:

"Declares illicit any form of blessing that tends to acknowledge their unions as such'

Islamic Religious Leader's Response

Islamic religious leaders were irked by the decision of the SCK and staged demonstrations across the coastal counties of Lamu, Kilifi, and Mombasa and planned to hold peaceful protests in Nairobi County on 17^th March 2023. Businesses were closed in Lamu as the mostly Islamic Lamu Old Town locals held an anti-LGBTQ protest, weeks after the Supreme Court ruling. Hundreds of demonstrators including Muslim clerics and youths matched around Mkunguni Square, Lamu, holding placards containing anti-LGBTQ sentiments. Religious leaders urged the residents to remain united in the war against moral decay and the sins of Kaum Lut

The Supreme Council of Kenyan Muslims (SUPKEM) led by their chairman Hassan Ole Nado condemned the supreme court ruling. He commended other religious groups and politicians who are opposed to the ruling. His narrative was supported by Jamia Mosque Secretary General Abdulbari Hamid who retaliated that homosexuality will not be tolerated in Kenya. Islamic teachings guide that homosexuality was non-existent even during creation.

Islamic religious leaders also quoted Article 11 of the Constitution of Kenya 2010 which stipulates culture as the foundation of the nation and that religion has often been interpreted by the courts as an element of culture. Islamic anti-gay narratives often hold that homosexuality is repugnant, immoral, and criminalized and is often compared to other social vices such as pedophilia or nudism which are equally criminalized in Kenya and can never be allowed in Kenyan society.

Political Class Response to the Ruling

A majority of the members of the Kenyan Parliament were opposed to the Supreme Court decision to allow for the registration of NGLHRC and other LGBTQ-led associations.

Officials in the executive arm of the Kenyan Government, led by President William Ruto during the Celebration of International Women's Day (March 8) declared that homosexuality will not be tolerated in Kenya. Ruto said he respects the rule of law and the decision of the courts but Kenya has its own culture, customs, and practices and that the Kenyan religious affiliations (Christianity and Islam) cannot allow a woman to marry a fellow woman, and a man to marry a fellow man. He urged religious leaders to rise up and guide their flock lest the country loses its moral fabric.

Retired Prime Minister of Kenya, Hon. Raila Odinga, together with other political leaders from the opposition (Martha Karua, Kalonzo Musyoka, Eugene Wamalwa, and Jeremiah Kioni) condemned the Supreme Court ruling on Petition No. 16 of 2019 by indicating that Judiciary overstepped its mandate and contravened Article 45(2) of the constitution of Kenya. Raila quoted Article 45(2) that says:

Every adult has the right to marry a person of the opposite sex based on the free consent of the parties.

Kalonzo Musyoka, the former Vice President of Kenya also condemned the SCK ruling indicating that the highest court in the land was trying to appease the West. Mr. Eugene Wamalwa reiterated that the Penal Code of Kenya has made itself clear in matters of homosexuality and should be respected by the courts.

Legal Fraternity Response

In the words of Alice Nkom, a Cameroonian Lawyer, "The world should stand up against anyone who looks different. We have a personal and collective responsibility to stand for humanity on this since it is the essence of our common human vocation"

Kenyan Celebrities Narratives on LGBTQ+

DJ. Mo called out on Kenyans to stop sugarcoating the LGBTQ matter, reiterating that he does not support it while quoting Leviticus 20:13. He also reiterated that as a parent, he knows what is best for his children.

Daddy Owen on the other indicated that allowing the LGBTIQ community in schools would 'corrupt' the institutions. He said he would not relent in his quest to ensure gayism is not normalized since the easiest way of introducing the concept is through schools.

Pro-LGBTQ+ Allied Voices

Amidst all the anti-LGBTQ narratives in Kenya, some allied voices from notable public figures dissented from the general direction of the LGBTQ discourse. Mutahi Ngunyi, a renowned political analyst argued that homosexuality in Kenya is here to stay. He urges those not identifying as LGBTQ to ignore it since it is impractical to ignore the morality of humans.

Mutahi Ngunyi was quoted saying, "Kenyans should climb down from their high horse of morality, we must accept it is here with us, we must exercise the tolerance of choice..."

LGBTQ+ themed Research & Publications

Kenya Human Rights Commission (KHRC) Study: "The Outlawed Amongst Us" Publication

Looking back in 2011, the KHRC conducted a four-month national study of the LGBTI community's search for equality and non-discrimination in Kenya. The study was led by Easter Waweru and Eric Mawira Gitari. The study unearthed key barriers to LGBTQ programming as well as challenges faced by sexual and gender minorities in Kenya: Harassment by state officials, stigma, and exclusion by family and society, physical violence and threats of death, expulsions from learning institutions, blackmail and extortion, poor access to healthcare and lack of comprehensive services, and medical research abuse.

State officials who enforce heteronormativity against presumed homosexual expressions extort for bribes or ask for sexual favors and charge those who do not comply with their demands with trumped-up charges. This is a deliberate failure by the state to protect LGBTIQ persons in policies and legislation.

SHAME IS NOT A CURE: So-Called Conversion “Therapy” Practices in Kenya {galck+[1]}

Outright International has been carrying out several initiatives to eradicate conversion practices in all their forms. One such initiative is the Africa program’s ongoing project in Africa to eradicate conversion practices in Kenya, Nigeria, and South Africa. The research findings, which were launched in July 2022 in Kenya, found that 44% of 547 respondents had experienced conversion practices and 47% of 516 respondents who had experienced conversion practices indicated that they were forced into it.

References

Category:Drafts about LGBT topics