feature image via author’s previous work on the HGLHRC
This last Friday, a court in Kenya ruled in favor of allowing an LGBTIQ human rights group to register and operate in the country. The ruling, delivered on March 22nd, comes a year to the day after the National Gay and Lesbian Human Rights Commission’s (NGLHRC) last legal win, outlawing the use of anal examinations and STI testing to determine the sexual orientation of gay men and trans* women. This is the second time in six years that the NGLHRC has won its case against the NGO Coordination Board – the governmental agency responsible for registering nonprofits in the country. Same-sex acts in the country remain punishable with up to 14 years imprisonment, though identifying as LGBTIQ is not a crime.
Founded in 2012 by a group of young Kenyan lawyers who wanted to advocate for the legal rights of LGBTIQ Kenyans — and provide culturally sensitive legal representation for many in the community who continue to be victims of discrimination and crimes because of their sexual orientation and/or gender presentation — the NGLHRC attempted to register as a non-profit in 2013. However, its application was denied on multiple occasions by the NGO Board. In their refusal, the Board took issue with the words “gay” and “lesbian” in the organization’s suggested name, implying that NGLHRC change its name to be allowed to register. The Board also argued that the group intended to promote homosexuality which it (falsely) claimed was against Kenyan law.
Then director of NGLHRC, Eric Gitari, filed a lawsuit against the Board arguing that his constitutional right to Freedom of Association had been violated. In 2015, a court ruled in favor of NGLHRC and ordered the NGO Board to allow its registration. In his ruling, the presiding judge highlighted that popular morality (read: blatant and pervasive homophobia) could not be used to infringe on the rights of individuals, and that Kenya was a secular state, not a religious one as argued by the Board. Therefore Freedom of Belief in the Christian faith, which the NGO Board cited was against homosexuality, applied both ways. That is, there are Kenyans who did not believe in Christianity, and therefore religion could not be used to limit constitutional rights.
This ruling marked an important turning point for LGBT rights activists in Kenya and the region. It was successfully relied upon in a similar case in Botswana where LEGABIBO, an LGBT rights organization had been denied registration. LEGABIBO won its appeal case in 2016. However, back in Kenya, the NGO Board has continued to defy court orders to register NGLHRC. The Board appealed the court’s decision that same year and in 2018, three years later, their appeal was heard by a five judge bench at the Court of Appeal. Just this past Friday, that bench dismissed the NGO Board’s case in a 3 to 2 ruling.
“In a society that is diverse as Kenya, there is need for tolerance and in any democratic society there will always be a marginalised group. This appeal therefore lacks merit and is dismissed,” one of the judges stated .
Immediately following this ruling, the Board, through its lawyer intimated that it would appeal the decision to the Supreme Court of Kenya. As of this writing, no appeal had been filed yet.
For Njeri Gateru, the current Executive Director of the NGLHRC, this moment was long overdue, “We continue to believe in the spirit of our Constitution and though we envision a long journey ahead, we are affirmed by the Court’s decision in the face of what it acknowledges is the pressure to to turn our lives into a non-issue.”
NGLHRC’s win comes amidst a wave of increased visibility of the rights of LGBT Africans across the continent. Just last September a court in Kenya temporarily overturned a ban against the film Rafiki for its portrayal of a lesbian romance. In January, Angola’s parliament voted to strike down laws outlawing same-sex intimacy — and then they went a step further, making it a crime to discriminate against LGBT individuals. In Kenya, the NGLHRC and other LGBT rights group are awaiting ruling on a petition filed in 2016 asking the courts to repeal sections of the Kenyan Penal Code which make same sex intimacy (and any non-procreative sex acts including masturbation and oral sex) a crime punishable with 5-14 years imprisonment. The ruling on this case was expected to be delivered in February, but was postponed to May 24th. In Botswana, a similar case calling for the repeal of similar sections of its Penal Code was heard in March. A ruling is expected on June 11th.
Despite NGLHRC’s ongoing legal battles, the organization has continued to operate in the country (registered under an alias) and has provided free legal aid to over 1,500 LGBTIQ individuals since 2013.