Kenya: Courts Uphold Gay Rights, But Struggle Continues

The decision by Kenya’s Supreme Court, that the country’s NGO co-ordination board must register an organisation with the words ‘gay’ and ‘lesbian’ in the name, has unleashed a storm of protest, particularly among the country’s traditional and religious sectors. But, in the view of Carmel Rickard, much of the comment is ill-informed or inaccurate.

The judgment that has sent many of Kenya’s traditional and religious leaders into paroxysms of anger, is the strangest of judicial decisions: it changes nothing, yet it changes everything.

At issue here was whether the NGO’s co-ordination board was correct to refuse registration of the name of a would-be NGO merely because it included the words ‘gay’ and ‘lesbian’ in the title.

Almost exactly eight years ago, the board announced its final decision, rejecting a slew of proposed names as undesirable, and refusing to approve any of them for registration. This has sparked a long trek through Kenya’s court system, as the gay community pushed for the name of its organisation to be registered.

Among the names proposed, and that the board refused to accept, were the gay and lesbian human rights council, and the gay and lesbian human rights organisation. These and other similar variations were all turned down by the board on the grounds that, as the Supreme Court summarised it, the penal code criminalises ‘gay and lesbian liaisons’.

First the High Court found the board was wrong, then the Appeal Court majority upheld that decision, saying that the board contravened the Constitution by ‘failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice’.

Now the apex court, again by a majority, has agreed that the board’s decision was incorrect.

But the Supreme Court decision makes no change to the legal position of Kenya’s gay community. It merely means that the registrar of NGOs may no longer refuse to register an organisation because it includes the words ‘gay’ and ‘lesbian’ in its name.

No new law has been made. No old laws have been struck down. Consensual same-sex activity remains a criminal offence. Gay marriage is still impossible. In this sense, nothing has changed.

And yet it has.

The change lies in the fact that one court after another has used the opportunity to stress that LGBTIQ people in Kenya are entitled to the rights guaranteed in the Constitution. And, as the High Court found – a finding in which the Supreme Court said it concurred – ‘an interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.’

Even more fundamentally, the trial court said that the words, ‘every person’ in the Constitution, included ‘all persons living within … Kenya despite their sexual orientation’. In other words, gay people are the bearers of rights. They cannot be excluded from the rights promised in the constitution merely because of their sexual identity.

Given the attitude to homosexuality in much of Kenya, these findings by the courts – obvious though they may seem to outsiders – change everything. Just to start with, gay people can’t be written off as having no rights.

There’s another point to be made by the decision: as you read the composite judgment – a three-judge majority finding, with two separate minority judgments – you can’t help but notice that they express no views on same-sex marriage or even on the current legislation that makes consensual sexual relations between same-sex partners illegal.

In other words, the hysterical response by some Kenyans that the courts have taken sides with the gay community, that they are permitting gay marriage and so on, is quite wrong.

Why have the courts in this series of cases – both the majority and the minority judges – expressed no views on whether homosexuality is ‘wrong’? There is a case making its way through the courts that challenges the constitutionality of the very sections of the penal code that make same-sex sexual activity a crime.

Members of the court have thus carefully ensured that they do not express views on a subject that could be before them, and you would draw a blank if you wanted to find support by the judges for gay marriage or even for decriminalisation of same-sex sexual activity.

Quite the opposite, in fact: while the majority of the court has largely said nothing on this subject, perhaps because they may yet have to decide a related question, the minority judges in the Supreme Court have stressed the view that such decisions best lie with the law-makers. Any change permitting gay marriage, for example, should come from the people or their representatives, even, perhaps, via a referendum.

Presumably the minority judges are flying the referendum kite because they do not believe that judges should take the lead in such matters.

But whatever the rationale, it is quite perverse, given the reticence of the judiciary about change, that conservative leaders in Kenya are sounding off against judges for somehow forcing the views of the LGBTIQ community onto Kenyans. The judges are doing nothing of the sort.

The strength of reaction to the Supreme Court’s decision, the viciousness of some proposals by religious and community leaders, and the failure of the police to respond appropriately to threats has left the country’s gay community fearful for their lives, according to some LGBTQ people.