It is with some trepidation that I share my views on the hot-button issue du jour of the Supreme Court decision which recognized the rights of association of the LGBTQ+ community in Kenya.
In April 2012, Eric Gitari, a lawyer and human rights activist wanted to establish a non-governmental organisation (NGO), and as required by law, applied to the NGO Coordination Board for registration. As with all such applications, Gitari first sought to reserve names for his intended organisation. The proposed names were, the National Gay and Lesbian Human Rights Commission; the National Coalition of Gays and Lesbians in Kenya; the National Gay and Lesbian Human Rights Association; the Gay and Lesbian Human Rights Council; the Gay and Lesbian Human Rights Observancy; and the Gay and Lesbian Human Rights Organization. Gitari was curtly informed that all his permutations were “unacceptable”, and so he went to court, eventually winning three times in a row at the High Court, the Court of Appeal and eleven years later in February 2023 at the Supreme Court of Kenya.
It is clear that the common words in all proposed names for the NGO are “gay and lesbian”. Even though he and Supreme Court Justice Ibrahim dissented from the majority on the issue of whether or not it was discriminatory to refuse to register an NGO with the words gay and lesbian in its name, Supreme Court Justice William Ouko explicitly counsels a strategic approach towards registration to avoid stigmatization. He wrote in his dissent that “in this case the only obstacle between the proposed organization and its registration were the two words, gay and lesbian. The 1st respondent [Eric Gitari] was resolute that the words were the identifying mark of the proposed organization and could not be abandoned.” SCJ Ouko concludes that the NGO Board had administrative discretion and was not bound to accept names “willy-nilly.”
The majority in the Supreme Court went the whole hog and declared that it was discriminatory of the NGO Board to refuse to reserve the names, and effectively block the registration of an NGO because “it had formed the opinion that the names and the objects offended public policy as their registration would stand in conflict with Sections 162, 163 and 165 of the Penal Code which provisions outlaw homosexual liaisons.” The constitutionality of these provisions has yet to be conclusively determined, but I’d just point out that the offences in two of the three sections of the Penal Code cited by the NGO Board can be, and undoubtedly are, committed by heterosexuals.
But that’s a discussion for another day.
In declaring the NGO Board to be guilty of discrimination and unreasonably restricting the freedom of association of persons entitled to form an association, the Supreme Court majority has provoked outraged responses from various quarters, both spiritual and temporal. At the root of the objection to Gitari’s NGO is a national puritanical streak about sexual matters that played a prominent role in the debates about the 2010 Constitution itself. Prior to the 2010 referendum, same-sex marriage was one of a few issues that threatened to torpedo the passage of the Constitution. I stress that it was the marriage issue and not sexual orientation per se.
However, during a recent televised debate a Senior Counsel whom I have a lot of respect for, argued vociferously that there was a clear understanding at the time of the 2010 Constitutional referendum (and even an assurance from the Committee of Experts), that the new Bill of Rights would not apply to sexual orientation. Is this really so?
It appears that within many minds there resides a conviction that despite the obvious implications of Article 36 of the Constitution, there is constitutionally guaranteed discrimination against LGBTQ+ Kenyans. In these quarters, this discrimination is justified on religious and cultural bases (which if you think about it are hard to pin down). Because the right to discriminate is claimed by reference to an unwritten compact, to wit, the church would support the passage of the new Constitution so long as the letter of the Constitution would not apply to some Kenyans, this recent debate reeks of hypocrisy. There actually was a political compact but in my recollection, it was based on clarification of the jurisdiction of the Kadhi’s Courts and the prohibition of abortion on demand and same-sex marriages, but I definitely cannot remember any conclusion that the new Constitution would discriminate against any persons of a different sexual orientation than the majority. Thus the Constitution of Kenya Review Commission (CKRC) report makes no mention of criminalizing sexual orientation, and neither does the Committee of Experts (CoE) report.
Indeed, Supreme Court Justice Ouko (remember he dissented) points out that had Gitari dropped the words “Gay and Lesbian” from the NGO application, the Board was “according to sworn affidavits, ready and prepared to reserve any of the names so long as the two words were omitted from the proposed names” and was quite happy to process their application. In other words, keep it on the down low and carry on with your business. This is a hypocritical stance by the State but also a sign that there is, even there, an acknowledgement of the fact of a LGBTQI+ Kenyan population. In essence, it is our version of Bill Clinton’s American policy of “don’t ask, don’t tell”.
Obviously, things are quite heated and the rhetoric is wild. It is wrong for religious and political leaders to all but incite violence against any person, whether they are of a different faith or sexual orientation.
The trouble is that in Kenya, the conservative tendency in faith groups and all political leadership have chosen to stand together to literally impose a new constitutional standard for the Supreme Court to apply. They claim that the Supreme Court “disregarded majority interests, the moral principle that is enshrined in the Constitution.” This is a self-serving claim that can be made by anyone who wants to purport to represent the “silent majority.” It is an old trick, and one that has been in history used to justify excessive reactions to factual and moral dilemmas. Thus one MP was so outraged, or claimed to be, that he has essentially proposed the abolition of the Supreme Court. A Senator says he will introduce a constitutional amendment to replace the Supreme Court with a referendum vote on decisions of national importance.Perhaps this is what the new authoritarian Kenya will look like in the 21st Century. Moral mob-rule will engender identity backlashes on a more and more frequent basis as elsewhere in the world. In our context, it may begin with this round of LGBTQ+ baiting, but it will ultimately end with other minorities who at present believe they are shielded from the mob. In the end, nobody will be safe.