Authored By: Amenen Emmanuel Nakadel
Egerton University
Case Name: ERICK GITARI V NGO COORDINATION BOARD AND OTHERS (PETITION NO 144 OF 2013)
Petitioners: Erick Gitari
First Defendant: Non – Governmental Organizations Board
Second defendant: Attorney General of Kenya
Third defendant: Executive director of the NGO Co-ordination Board
Third Parties: Kenya National Commission of Human Rights
Courts: High court, Court of Appeal, Supreme court.
High Court Judges: Justice Isaac Lenaola, Hon Lady Justice Mumbi Ngugi and Hon Justice George Odunga.
Court of Appeal Judges: Hon Lady Justice Martha Koome, Justice Otieno Odek and Justice Alnasir Vishram.
Supreme Court Judges: Hon Justice Martha Koome, Justice Philomena Mwilu, Justice Mohamed Ibrahim, Justice Smokin Wanjala, and Justice Njoki Ngung’u.
Introduction
This is a landmark Kenyan High Court decision affirming the constitutional rights of LGBTQ+ persons to freedom of association, striking down the Non-Governmental coordination board’s refusal to register an organization advocating for sexual minority rights. It remains one of the most significant rulings on equity and constitutional freedoms in Kenya.
Facts of the case
Erick Gitari a Kenyan lawyer and an activists sought to register a Non- Governmental Organization aimed at protecting and promoting the human rights of the LGBTQ+ persons in Kenya. He proposed several names of the organization such as; Gay and Lesbian Human Rights Council, Gay and Lesbians Human Rights Observance, Gay and Lesbian Human Rights Organization, and Gay and Lesbian Human Rights Commission.
The NGO Co-ordination Board refused to Reserve any of these names citing that the names were undesirable and inconsistence with the Penal code (cap 63, laws of Kenya), s162, s163, s165 which criminalizes same sex relations. The NGO board relied on the Non- Governmental Organization Co-ordination Regulations 1992, reg 8(b). Which provides that an application may be rejected if such names are inconsistent with any law. The board also argued registering an organization with gay and lesbian name would effectively promote criminal activities and immoral affairs.
The petitioner Mr. Erick Gitari then commenced the litigation proceedings on the ground that his constitutional rights to freedom of association under Constitution of Kenya 2010, art 36 and freedom from discrimination under Constitution of Kenya 2010, art 27 has been violated. The Defendants contended that the petitioner’s rights to freedom of association and freedom from discrimination had not been infringed with, rather it had been limited.
Legal Issues
Issue 1. whether the NGO coordination board’s refusal to register National Gay and Lesbian Human Rights Commission violated Constitution of Kenya 2010, art 36 which guarantees the right to freedom of association.
Issue 2. Whether the refusal to register the NGO amounted to discrimination under Constitution of Kenya 2010, art 27 which guarantees equality before the law.
Issue 3. Whether the right to freedom of expression and advocacy of the NGO had been suppressed.
The Petitioner Arguments
- Violation of freedom of association
Contention: The denial of registration infringed the Article 36 of the constitution which guarantees every person the right to form, join, or participate in associations.
- Discrimination and equality
Contention: The refusal amounted to discrimination contrary to Article 27 of the constitution, which guarantees equality before the law and prohibits discrimination on grounds including sex.
- Supremacy of the constitution
Contention: The board reliance on morality and penal provisions criminalizing same sex conduct could not override constitutional rights.
- Freedom of expression
Contention: Denial of registration suppressed advocacy and violated Constitution of Kenya 2010, art 33, which protects freedom of expression.
The legal provision relied on:
Constitutional of Kenya 2010, art 36
freedom of Association
Constitutional of Kenya 2010, art 27
Equality and Non-discrimination
Constitutional of Kenya 2010, art 2(2)-Supremacy of the constitution
Constitutional of Kenya 2010, art 19
Bill of rights applies to all persons and binds all state organs
The Precedents Cited
Coalition For Reform and Democracy (CORD) V Republic of Kenya [2015] eKLR (Kenya High Court)
Affirmed that constitutional rights cannot be limited arbitrarily.
S v Makwanyane (1995) ZACC 3,1995 (3) SA 391 (CC) (South Africa Constitutional Court)
Emphasized dignity, equality and rights protection in constitution interpretation.
Attorney General v Dow (1992) BLR (Botswana Court of appeal) –
Recognized quality and non- discrimination as fundamental constitutional principles.
Constitutional and Statutory interpretation Offered
Interpretation of “sex” under Constitutional of Kenya 2010, art 27 includes sexual orientation, aligning with international human rights jurisprudence.
Interpretation of Non- Governmental Organizations Co-ordination Act (No 19 of 1990, laws of Kenya): The Act does not empower the board to deny registration based on the nature of advocacy provided it is lawful.
Respondent’s Arguments
Illegality of Purpose: The NGO board argued that the registration of an organization advocating for LGBTQ+ rights would promote activities contrary to Kenyan law, particularly provisions criminalizing same sex conduct under the penal code Public Morality: They claimed that such registration would offend public morality and cultural values, which the board had a duty to protect.
Administration Discretion: The board asserted it had discretion under the NGO coordination Act to refuse names or objectives deemed undesirable or inconsistent with the law.
Religious and Cultural Objections: Supported by interested parties like the Kenya Christian Professionals Forum, respondents emphasized Kenya’s religious and cultural stance against homosexuality.
Counter arguments
Conflict with Criminal Law
The respondents argued that the proposed NGO’s name and objectives (which included the words “Gay” and “Lesbian”) were repugnant to or inconsistent with the law specifically they contended that:
Penal code (cap 63, laws of Kenya), s162, s163, s165
criminalize “Carnal knowledge against the order of nature” and indecent acts between males.
Registering an organization to advocate for those groups would effectively legalize or promote criminal behavior.
Public Policy and Morality
The board maintained that its decision was informed by Kenyan public policy, moral principles, and religious beliefs. They argued that:
The preamble of the constitution acknowledges the supremacy of God, who is seen as the objective moral law giver.
The majority of Kenyans hold strong moral and religious convictions against homosexuality, and the Board should not register entities that offend these values.
Protection Of Marriage
The respondents argued that Constitutional of Kenya 2010, art 45(2) specifically recognizes marriage as a union between a man and a woman. They contended that: Granting the orders sought by Gitari would “open the door” for same sex unions through the “back door”
Only Parliament, not the courts have the legislative mandate to change laws regarding sexual orientation.
Limited scope of Freedom of Association
The respondents argued that while Constitutional of Kenya 2010, art 36 guarantees the freedom of association, it is not absolute and can be limited in the interest of public morality and order. They claimed that the refusal to register the NGO did not violate Gitari’s rights because the state has a duty to uphold the existing penal laws.
Procedural Objections
The board also raised several procedural arguments, claiming that the petition was incompetent, misconceived, and misplaced. Gitari had failed to exhaust the internal remedies provided under the NGO coordination Act before approaching the court. The court would be “overstretching its mandate’’ by interfering with the board’s discretionary power to reject undesirable names.
Ultimately, the High Court, Court of Appeal, and Supreme Court rejected these arguments, affirming that the right to association applies to all, regardless of sexual orientation.
Court’s Reasoning and Analysis
Interpretation of the statutes
The constitution of Kenya: The court relied heavily on Constitutional of Kenya 2010, art 36, ruling that the NGO coordination board’s refusal to register the organization violated the the right to freedom of association. It clarified that the constitution does not permit discrimination based on sexual orientation when exercising fundamental freedoms.
The NGO coordination Act: The board argued that registering an LGBTQ+ NGO would contravene “morality” and public policy. The court rejected this, stating that statutory provisions must be read in harmony with constitutional guarantees, and morality cannot override explicit constitutional rights.
Applied Precedent
The court referenced international human rights jurisprudence for instance the UN Human rights committee decisions to reinforce that freedom of association is universal.
Evaluation of the arguments
The NGO Coordination board position: They claimed that the registration would promote homosexuality, which is criminalized under the Kenya penal code provisions on “unnatural acts”. They argued that public morality justified refusal.
Erick Gitari’s position: He asserted that the NGO sought to promote human rights, not sexual conduct, he emphasized that criminalization of certain acts does not negate the right to association.
Courts Evaluation: The court found the Board’s arguments speculative and unsupported by law
Legal Reasoning
The court reasoned that constitutional rights are not subject to majority approval or moral opinion. It underscored that freedom of association is a foundational democratic right and denying it based on sexual orientation amounts to discrimination.
Balancing Interests of the parties:
The court’s balance: It held that protecting constitutional rights outweighs speculative concerns about morality. It clarified that registering the NGO does not legalize same-sex conduct but enforces equal access to organizational rights.
Judgement and Ratio Decidendi
The court’s Judgement
On whether the freedom of association was violated: The court held that NGO coordination board refusal was unconstitutional because the right to associate cannot be limited based on sexual orientation.
On whether the Limitation was justifiable under Constitutional of Kenya 2010, art 24: The court found no legitimate constitutional basis to restrict association rights in this context.
On whether public morality justified refusal of registration: The court emphasized that constitutional rights cannot be denied on the basis of majority morality or prejudice.
Reliefs and Remedies Granted
Order of registration: The court directed that the National Gay and Lesbian Human Rights Commission must be registered as an NGO.
Declaration: It was declared unconstitutional to deny registration solely on the basis of sexual orientation.
Ratio Decidendi
The court held that it would be unconstitutional to limit the right to associate through denial of registration of an association, purely on the basis of sexual orientation of the applicants. The ratio decidendi freedom of association cannot be curtailed based on sexual orientation.
Critical Analysis
Significance of the court’s decision
The court’s rulings had the following impacts: It established that state organs cannot deny rights based on personal identity or minority status, setting a precedent for broader human rights protections. It clarified that the right to associate is not contingent on majority approval or moral consensus, but it is fundamental right guaranteed to all Kenyans. The decisions underscored the role of courts as guardians of minority against majoritarian or political pressures. It also signaled the government agencies that administrative discretion must align with constitution guarantees.
Implications and Impacts of the court’s decision
The ruling set a binding precedent that sexual orientation cannot be used as a basis to deny registration of an organization, enforcing Constitutional of Kenya 2010, art 36
It marked a significant step in recognizing LQBTQ+ rights in Kenya’s constitutional framework even though same sex relations remains criminalized in the penal code.
The decision allows LGBTQ+ groups to operate legally, strengthening advocacy for equality, health rights, and anti- discrimination campaigns.
The ruling sparked public debate and backlash from religious and conservative groups, highlighting the ongoing cultural division.
Strengths of the court’s decision
The court upheld the supremacy of the constitution, emphasizing that fundamental rights cannot be limited by moral or religious objection.
The ruling demonstrated judicial independence and bravery, given the political sensitivity of LGBTQ+ issues in Kenya.
The decision aligns Kenya with International human rights standards strengthening its reputation in global legal discourse.
Weaknesses of the court’s decision
The ruling only addressed freedom of association, not broader LGBTQ+ rights such as decriminalization of same sex relations.
The decision risks political and legislative pushback, with potential attempts to amend laws or restrict NGO activities indirectly.
The court’s progressive stance may be seen as out of touch with prevailing public option, weakening acceptance and compliance.
Conclusion
Erick Gitari’s case highlights the tension between the constitutional guarantees of rights and the entrenched societal norms. It has sparked national and international debate on LGBTQ+ rights in Kenya strengthening advocacy movements. The court’s decision leaves open the possibility of future constitutional challenges as societal attitudes evolve and regional human rights jurisprudence develop.[1]
Reference(S):
Penal code (cap 63, laws of Kenya), s162
Penal code (cap 63, laws of Kenya), s 163
Penal code (cap 63, laws of Kenya), s 165
Non- Governmental Organizations Co-ordination Act (No 19 of 1990, laws of Kenya)
Non- Governmental Organization Co-ordination Regulations 1992, reg 8(b)
Attorney General v Dow (1992) BLR (Botswana Court of appeal)
S v Makwanyane (1995) ZACC 3,1995 (3) SA 391 (CC) (South Africa Constitutional Court)
Coalition For Reform and Democracy (CORD) V Republic of Kenya [2015] eKLR (Kenya High Court
[1] Constitution of Kenya 2010, art 2(2)
Constitution of Kenya 2010, art 19
Constitution of Kenya 2010, art 24
Constitution of Kenya 2010, art 27
Constitution of Kenya 2010, art 33
Constitution of Kenya 2010, art 36
Constitution of Kenya 2010, art 45(2)
