(Nairobi) – The High Court of Kenya, in a groundbreaking decision, ruled on April 24, 2015, that members of a lesbian, gay, bisexual, and transgender (LGBT) rights group could formally register their organization, Human Rights Watch said today.
The High Court decision was issued in response to a petition filed by the National Gay and Lesbian Human Rights Commission (NGLHRC) to register under the Non-Governmental Organizations Coordination Board Act. The Non-Governmental Organizations Coordination Board, a government body, rejected the group’s request to register in March 2013. In denying the application, the board said that the name of the organization was “unacceptable,” and that it could not register it because Kenya’s penal code “criminalizes gay and lesbian liaisons.”
“The court decision is a significant victory for the LGBT community, not only in Kenya, but elsewhere in Africa where LGBT groups have faced similar obstacles to registration,” said Graeme Reid, LGBT rights director at Human Rights Watch. “An LGBT organization’s ability to register and advocate for its members is fundamental for free association, free speech, and equality under the law.”
In its decision to reverse the ruling of the NGO board, the three-judge High Court panel composed of Justice Mumbi Ngugi, Justice George Odunga, and Justice Isaac Lenaola ruled that the NGO board’s decision violated article 36 of Kenya’s constitution, which 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.” The judges further ruled that conceptions of morality cannot serve as a justification to limit fundamental rights.
The law in Kenya criminalizes “carnal knowledge against the order of nature,” commonly understood to mean anal sex, but no provision forbids people to be lesbian, gay or transgender or to associate in pursuit of common interests.
“This judgement from the constitutional court is ground breaking; it marks a historic momentum towards the inclusion of sexual and gender minorities into the Kenyan democratic space,” said Eric Gitari, Executive Director of NGLHRC, in a press statement. “It alludes to a country that is keen to becoming much more open and democratic despite the challenges.”
The court has granted the Kenya Christian Professional Forum, which had been enjoined to the case as an interested party and had made a submission opposing NGLHRC’s registration bid, leave to appeal the judgment to the Court of Appeal.
Same-sex conduct is outlawed in 35 African countries. One of the insidious effects of these laws is that LGBT organizations are denied registration in many of these countries on the grounds that they will be promoting an illegal activity. This has the effect of violating LGBT people’s rights to freedom of association, assembly, and expression, Human Rights Watch said.
LGBT groups in several African countries are challenging governments’ refusal to recognize them. In a related case in Kenya, the Kenya High Court ruled in July 2014 that a transgender organization, Transgender Education and Advocacy (TEA), could formally register, reversing the NGO board’s decision. In Botswana, the High Court ruled in November 2014 that members of Lesbian, Gays and Bisexuals of Botswana (LEGABIBO), an LGBT rights group, could formally register their organization. Botswana’s attorney general appealed the decision on December 23, and a Court of Appeal decision is pending.
Similarly, the African Commission on Human and People’s Rights on April 25 granted observer status to the nongovernmental Coalition of African Lesbians (CAL). The group, a Pan-African network that fights for the rights of lesbian and bisexual women, had in 2010 been refused observer status at the commission, which is tasked with monitoring countries’ compliance with the African Charter on Human and People’s Rights and promoting human rights on the continent.
Under article 22 of the International Covenant on Civil and Political Rights, to which Kenya is a party, any restrictions to the right to freedom of association must be “necessary in a democratic society,” and “in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Article 2 of the covenant requires countries to adhere to all the rights in the covenant, including freedom of association, without discrimination.
Human Rights Watch expressed concern that while Kenya’s High Court has moved to uphold rights for LGBT people, the Kenyan authorities are interfering with the work of two nongovernmental organizations, Haki Africa and Muslims for Human Rights (MUHURI). The two groups have documented and publicly opposed human rights violations during operations by security forces at the Kenyan coast. In early April, the government froze their bank accounts after placing the two groups on a terrorism watch-list. The Kenyan Revenue Authority (KRA) raided their offices on April 20 and 21, respectively, and seized documents and hard drives in connection with investigations into possible tax evasion.
“Freedoms of association, assembly, and expression reflect paramount values in a democratic society,” Reid said. “By safeguarding the right of an LGBT organization to register and operate freely, the court was protecting those rights for all in Kenya. By the same token, government pressure on human rights groups like Haki Africa and MUHURI should be viewed as a threat to the rights of all Kenyans."