The National Gay and Lesbian Human Rights Commission (NGLHRC) launched its case in 2013 after its application to be registered as a non-governmental organisation (NGO) was denied.
The NGO Coordination Board had refused to register the NGLHRC because its name contained the words “gay” and “lesbian”. Homosexuality is criminalised in Kenya under laws imposed under British colonialism.
In 2015, the High Court ruled the refusal unconstitutional. The case then went to the Court of Appeal, which issued the same ruling in 2019.
The Supreme Court has now upheld this, ruling on Friday (24 February) it would be “unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants”.
The ruling stated: “Given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not”.
LGBTQ+ people continue to face significant legal challenges in Kenya – gay sex is a criminal offence, with those convicted facing between five and 14 years in prison.
While sex between women is not explicitly criminalised, lesbians, bisexuals and trans people can face discrimination, including “corrective rape”.
Kenya does not recognise any kind of same-sex relationships and there are no protections for LGBTQ+ people on the basis of sexual orientation or gender identity.
By Wanjiru Mbaru