Eric Gitari v Non-Governmental Organisations Co-ordination Board & 4 Others  eKLR (24 April 2015)
The recent decision of the Kenyan High Court in Eric Gitari v Non-Governmental Organisations Co-ordination Board & 4 Others  eKLR is an important victory for the right to freedom of association, and for gay and lesbian people in Kenya. The decision is part of a broader trend of African-based LGBTIQ groups using the courts to protect human rights.
The petitioner, Eric Gitari, sought to register a non-governmental organisation (NGO) with Kenya's NGO Co-ordination Board. The core purpose of Gitari's organisation, the National Gay & Lesbian Human Rights Commission, is the advancement of human rights. Specifically, the NGO will seek to address human rights abuses suffered by gay and lesbian people. Gitari sought to reserve a number of names, all featuring the words "gay and lesbian". Each of his applications were rejected.
Gitari then petitioned the Kenyan High Court seeking a determination that his right to freedom of association under the Kenyan Constitution had been infringed. Article 36 of the Constitution provides that "every person" has the right to form an association "of any kind". Article 36 further provides that an application to form an association can only be refused on "reasonable grounds".
The Board advanced several arguments. In particular, the Board contended that Gitari's right to freedom of association had not been infringed and, even if it had, such an infringement was justified because homosexual intercourse is criminalised under the Kenyan Penal Code.
The Court held that Gitari is a "person" for the purposes of Article 36 of the Constitution, noting:
The petitioner has expressly sought a declaration that he is a "person" for the purposes of Article 36 of the Constitution. It is our view that this is to ask the Court to address itself to the obvious: an individual human being, regardless of his or her gender or sexual orientation, is a "person" for the purposes of the Constitution.
The Court further found that Gitari's right to freedom of association had been infringed. The Court noted that "the right of citizens to freedom of association is an important and powerful right, critical to the enjoyment of rights". Specifically referring to gay and lesbian people, the Court noted:
in a representative democracy, and by the very act of adopting and accepting the Constitution, the State is restricted from determining whose convictions and moral judgments are tolerable. The Constitution and the right to associate are not selective.
Citing case law from South Africa and the United States, the Court emphasised its view that it cannot be proper to limit the right to freedom of association on the basis of popular opinion. Doing so, the Court reasoned, would be contrary to a central purpose of a constitutionally entrenched bill of rights – the protection of the rights of minorities.
The Board argued that Gitari's right to freedom of association had not been infringed because Gitari could register his organisation under another name. However, the Court rejected this argument, noting that it was apparent from the evidence presented by the Board itself that it objected both to the name and objects of the proposed NGO.
The Court also rejected the submission that Kenya's criminalisation of homosexual intercourse indicated that the right to freedom of association should be limited. The Court drew on jurisprudence from Uganda and Botswana to draw a distinction between sexual orientation and the "promotion of sexual acts". The objective of the proposed NGO was the protection of persons on the basis of their sexual orientation, which had no bearing on conduct criminalised under Kenyan law. Consequently, the aims and purposes of the proposed NGO were lawful.
The Court also allowed submissions by two parties with diverse interests in the registration of the proposed NGO. The first interested party was a transgender woman. The second was the father of an intersex child. These interested parties opposed the registration of the proposed NGO, primarily on the basis that there is a distinct difference between lesbian, gay and bisexual persons, and transgender and intersex persons, and that the registration of the NGO would result in these issues being conflated. This suggests divisions within the LBGTIQ movement exist in Kenya that have also been seen in many other countries. The Court noted:
We appreciate the concerns of the 1st and 2nd interested parties with the possibility of blurring the issues of distinction between … lesbian, gay and bisexual persons and those who are transgender or intersex.
However, the Court noted this concern could not assume primacy over the Gitari's right to freedom of association.
Freedom association requires nations to create an enabling environment for civil society to operate. In practice, this requires facilitation of registration and ensuring NGOs have the ability to receive funds and resources. Restrictions on NGO registration and funding is a disturbing in the global South but also in so-called ‘old democracies’; and NGOs are increasingly resorting to litigation as a means of challenging these violations. This decision in the latest success in a series decisions by courts regarding the registration of NGOs but also has important implications for LGBTIQ rights in Kenya.
The High Court's decision is one of several recent positive developments regarding LGBTIQ rights in Kenya and Africa more broadly. For example, the Kenyan High Court recently ordered the Co-ordination Board to formally register the Transgender Education and Advocacy Group. In addition, the Kenyan Parliament's Committee on Justice and Legal Affairs recently rejected a bill (on that basis that it was unconstitutional) that sought to punish homosexual sex with life imprisonment for citizens or public stoning for foreigners.
LGBTIQ activists have demonstrated that the courts will continue to be an important mechanism for realising the rights of LGBTIQ people in Africa. The full text of the decision can be found online here: http://kenyalaw.org/caselaw/cases/view/108412/
Jeremy Rich is a Law Graduate at Allens.