It's official. Gays and Lesbians can now openly register an umbrella organisation to fight for and defend their human rights.
The High Court on Monday ordered the NGOs Coordination Board to recognise and register a gays' lobby it had earlier rejected on moral and religious grounds.
The court ruled that the Constitution allows recognition and protection of the rights of “every person”, including minority groups such as gays and lesbians.
“In Kenya, the Constitution is supreme, and it requires conduct to be justified in terms of laws that meet the constitutional standard. The state has to act within the confines of what the law allows, and cannot rely on religious texts or its views of what the moral and religious convictions of Kenyans are to justify the limitation of a right,” judges Issac Lenaola, Mumbi Ngugi and George Odunga ruled.
They said the Attorney-General, the NGO board and other parties who had opposed the registration of the gay association “may or may not be right about the moral and religious views of Kenyans, but our Constitution does not recognise limitation of rights on these grounds.”
“The Constitution is to protect those with unpopular views, minorities and rights that attach to human beings, regardless of a majority’s views,” they said.
The work of a court, especially a court exercising constitutional jurisdiction with regard to the Bill of Rights, the judges added, is to uphold the Constitution, not popular views or the views of a majority.
The judgment follows a petition filed by Mr Eric Gitari who sought to register the non-governmental organisation.
LOBBY WAS REJECTED
The core objectives of the lobby, according to its founders, “is the advancement of human rights” specifically, seeking to address the violence and human rights abuses suffered by gays and lesbians.
Mr Gitari’s application was made to the NGOs Coordination Board but was rejected on the basis that it was seeking to protect gays and lesbians.
He sought redress at the High Court September 2, 2013 where he asked the court to determine whether he is a “person” as protected in Article 36 of the Constitution , and if so, whether his right to freedom of association had been infringed.
In response, the NGos board, through the AG, who was enjoined in the case as a respondent, defended its actions, saying the petitioner’s right to freedom of association has not been infringed and if limited, such limitation can be justified on the basis of the criminalisation of homosexual intercourse in the Penal Code.
In his petition, Mr Gitari explained that he was not seeking to criminalise conduct but to further the equality of lesbian, gay, bisexual, trans, intersex and "queer" persons in Kenya.
“It is, in addition, our finding that the board violated the petitioner’s right to non-discrimination by refusing to accept the names proposed on the basis that the proposed NGO sought to advocate for the rights of persons who are not socially accepted,” the judges said.
They said that their “understanding of the objectives of the proposed NGO is the protection of persons whose sexual orientation is gay or lesbian, as well as persons who are transgender or intersex, from discrimination and other violation of their rights.”
“It is not for the promotion of the sexual acts against the order of nature prohibited by the Penal Code, nor is it to advance paedophilia as submitted by the board, which are criminal offences with respect to which clear penal consequences are provided,” they said.
The judges explained that the words “every person” in Article 36 of the Constitution include all persons living within the Republic of Kenya despite their sexual orientation.
“We hereby declare that the respondents have contravened the provisions of Articles 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,” the judges said.
They said the petitioner is entitled to exercise his constitutionally guaranteed freedom to associate by being able to form an association and directed the Board to strictly comply.