Authored By: Dilen Onyango Ochieng
Egerton University
1. Case Citation and Basic Information
NGOs Co-ordination Board v Eric Gitari, Attorney General, Audrey Mbugua Ithibu, Daniel Kandie and Kenya Christian Professionals Forum (Katiba Institute, amicus curiae) Petition No. 16 of 2019; [2023] KESC 17 (KLR).
Court: Supreme Court of Kenya, sitting at Nairobi.
Date of Judgment: 24 February 2023.
Bench: Mwilu DCJ & Vice-President, Ibrahim SCJ, Wanjala SCJ, Njoki Ndungu SCJ and Ouko SCJ, with Ibrahim SCJ and Ouko SCJ each delivering separate dissenting opinions.
This was an appeal, as of right under article 163(4)(a) of the Constitution of Kenya 2010, from a majority decision of the Court of Appeal (Civil Appeal No. 145 of 2015) which had upheld a High Court judgment in Eric Gitari v Non-Governmental Organisations Co-ordination Board & 4 Others Petition No. 440 of 2013.
2. Introduction
This appeal arose from the refusal of the NGOs Co-ordination Board (“the Board”) to reserve a name for a proposed non-governmental organization intended to advocate for the rights of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) persons in Kenya. The case is significant because it required Kenya’s apex court to determine, for the first time at that level, whether the constitutional guarantees of freedom of association under article 36 and non-discrimination under article 27(4) extend to persons on the basis of sexual orientation, notwithstanding the continued existence of Penal Code provisions criminalizing certain same-sex acts. The 3:2 split within the majority opinion itself, and the two separate dissents, illustrate the deep contestation the issue generated even within the Court.
3. Facts of the Case
In April 2012, Eric Gitari (the 1st respondent), an advocate of the High Court, applied to the Board on several occasions for reservation of a name for a proposed NGO intended to champion the rights of LGBTIQ persons. The proposed names included variants such as “Gay and Lesbian Human Rights Council” and “National Coalition of Gays and Lesbians in Kenya”. The Board’s Executive Director declined to approve any of the names, and later gave written reasons dated 25 March 2013 stating that the names, and the underlying objects of the proposed organization, conflicted with sections 162, 163 and 165 of the Penal Code, which criminalize certain acts described as being “against the order of nature” and “gross indecency” between males. The Board indicated it would have reserved the names had the words “gay” and “lesbian” been omitted; the 1st respondent declined to do so.
Aggrieved, the 1st respondent petitioned the High Court, which held (Lenaola, Ngugi and Odunga JJ, as they then were) that the Board’s refusal contravened articles 36 and 27 of the Constitution and issued an order of mandamus. The Board’s appeal to the Court of Appeal was dismissed by a majority of 3:2 (Waki, Koome and Makhandia JJA; Nambuye and Musinga JJA dissenting), prompting the further appeal to the Supreme Court.
4. Legal Issues
The Supreme Court identified three issues for determination:
(i) Whether the 1st respondent was required to exhaust the internal dispute resolution mechanism under section 19 of the Non-Governmental Organizations Co-ordination Act before approaching the High Court;
(ii) Whether the Board’s refusal to reserve the proposed names violated the 1st respondent’s right to freedom of association under article 36 of the Constitution; and
(iii) Whether the Board’s decision was discriminatory and contravened the non-discrimination clause in article 27(4) of the Constitution.
5. Arguments Presented
5.1 Appellant’s (the Board’s) Arguments
The Board, supported by the Attorney General and the Kenya Christian Professionals Forum, argued that the 1st respondent ought first to have exhausted the appeal mechanism to the Minister under section 19 of the NGO Coordination Act. On the merits, it contended that article 36 is not an absolute right and is subject to limitation under article 24; that the proposed names and objects conflicted with sections 162, 163 and 165 of the Penal Code, which remained valid law; and that registration would therefore be contrary to public policy and the national interest. It further argued that article 27(4) does not list sexual orientation among the prohibited grounds of discrimination, and that Kenya’s Constitution, unlike South Africa’s, deliberately omitted this ground. The Board maintained that its refusal was a reasonable and lawful exercise of its statutory discretion under section 14 of the Act and Regulation 8 of the NGO Coordination Regulations.
5.2 1st Respondent’s Arguments
The 1st respondent, supported by the amicus curiae (Katiba Institute), argued that the decision to refuse reservation of names was an administrative act of the Director, not the Board, and therefore did not attract the internal appellate mechanism under section 19. On the substantive issues, he contended that article 36 guarantees freedom of association to “every person” without exception, that LGBTIQ persons are “persons” entitled to that guarantee, and that the only express group-based limitation in the Constitution (article 24(5)(b)) concerns disciplined forces, not sexual minorities. He argued that Sections 162, 163 and 165 of the Penal Code do not criminalize sexual orientation as such, only specific acts, and could not lawfully ground a blanket refusal to register an advocacy organization. He further submitted that the word “including” in article 27(4) renders the listed grounds illustrative rather than exhaustive, such that sexual orientation falls within its protection.
6. Court’s Reasoning and Analysis
On exhaustion, the majority and both dissenting judges agreed that the impugned decision concerned reservation of a name under Regulation 8 of the NGO Coordination Regulations, 1992 -an administrative process distinct from registration decisions of the Board appealable to the Minister under section 19 of the Act. Since no internal remedy existed for that specific decision, the High Court properly assumed jurisdiction.
On freedom of association, the majority (Mwilu DCJ & VP, Wanjala and Njoki SCJJ) held that article 36 protects “every person” and that LGBTIQ persons are undoubtedly persons falling within that guarantee. Applying the limitation framework in article 24, the majority found that Sections 162, 163 and 165 of the Penal Code do not, on their own terms, target LGBTIQ persons specifically- the offences are framed generically (“any person”) and apply equally to heterosexual and homosexual conduct. Consequently, the Board’s blanket refusal was not a proportionate or legitimate limitation on the right, since there was no evidentiary basis linking the applicant’s intended advocacy activities to the commission of an offence. The majority drew on comparative jurisprudence, including Zhdanov v Russia and the Botswana Court of Appeal decision in Attorney General of Botswana v Thuto Rammoge, for the proposition that refusal to register advocacy associations on the basis of the sexual orientation of their founders is not a legitimate aim under a proportionality analysis.
On non-discrimination, the majority held that the word “including” in article 27(4) renders the enumerated grounds illustrative, not exhaustive, and that “sex” in that provision should be read as encompassing sexual orientation, drawing support from Toonen v Australia and Salgueiro da Silva Mouta v Portugal.
Justice Ibrahim, dissenting, agreed on exhaustion but held that, so long as Sections 162, 163 and 165 remain valid and unrepealed law (their constitutionality having been separately upheld by the High Court in EG & 7 others v Attorney General), the Board could not lawfully be compelled to reserve a name signaling advocacy for conduct those provisions proscribe; and that Article 27(4) does not extend to sexual orientation, given the drafting history reflected in the CKRC Report.
Justice Ouko, also dissenting on the merits, undertook a detailed proportionality and reasonableness analysis under article 47 and the Fair Administrative Action Act, concluding that the Board’s discretion under section 14 of the Act and Regulation 8 was exercised lawfully, rationally and in good faith given the unrepealed Penal Code provisions, and that the historical record of the constitution-making process showed no intention to include sexual orientation within article 27(4).
7. Judgment and Ratio Decidendi
By a majority decision, the Supreme Court dismissed the appeal with costs to the 1st respondent, affirming that: (a) reservation of a name under Regulation 8 of the NGO Coordination Regulations is not subject to the internal appeal mechanism in section 19 of the NGO Coordination Act; (b) the right to freedom of association under article 36 extends to all persons, including LGBTIQ persons, and a blanket refusal to reserve a name for an advocacy organization, grounded only in the sexual orientation implicit in its name, is an unjustified and disproportionate limitation of that right; and (c) the non-discrimination guarantee in article 27(4) is illustrative rather than exhaustive and extends to discrimination on the basis of sexual orientation. The ratio decidendi is that a regulatory body’s discretion to refuse registration-related applications must be exercised on legitimate, evidence-based grounds connected to unlawful conduct, and cannot be exercised merely on the basis of the sexual orientation of an applicant or its intended beneficiaries.
8. Critical Analysis
8.1 Significance of the Decision
The judgment is significant as the first pronouncement of Kenya’s apex court squarely addressing the intersection between freedom of association and the legal status of sexual minorities. It clarifies that recognition of a right to associate is analytically distinct from the decriminalization debate, allowing the Court to sidestep the more politically fraught question of Penal Code constitutionality while still affording LGBTIQ persons a associational foothold.
8.2 Implications and Impact
The decision affirms that administrative bodies cannot use generic, non-targeted criminal provisions as a blanket justification for denying registration-related services to persons or groups associated with a marginalized identity. It also signals, through the majority’s reading of “including” in article 27(4), an evolving and purposive approach to constitutional non-discrimination clauses. However, because the ruling is confined to registration of an association and expressly disclaims addressing decriminalization or same-sex marriage, its practical effect on the broader legal status of LGBTIQ persons in Kenya remains limited.
8.3 Critical Evaluation
The 3:2 split, replicated in both the Court of Appeal and the Supreme Court, exposes considerable normative disagreement over the interpretive weight to be given to the CKRC Report and the historical drafting record. Ibrahim and Ouko SCJJ argue persuasively that the deliberate omission of “sexual orientation” from article 27(4), when contrasted with jurisdictions such as South Africa which expressly included it, ought to carry interpretive weight; the majority’s reliance on the residual, non-exhaustive character of “including” is a plausible but contestable textual route around this omission. Similarly, the majority’s insistence that Sections 162, 163 and 165 do not “target” LGBTIQ persons is difficult to reconcile with the practical reality that these provisions are, in enforcement, aimed disproportionately at persons in a homosexual relationship. On balance, the majority judgment reaches a socially significant and rights-protective outcome, but its reasoning on the scope of article 27(4) rests on a more contested interpretive foundation than its reasoning on article 36.
9. Conclusion
NGOs Co-ordination Board v Eric Gitari & 5 Others confirms that the constitutional right to freedom of association under article 36 of the Constitution of Kenya extends to LGBTIQ persons, and that a regulatory body may not refuse to reserve a name or process an application for an advocacy association solely because of the sexual orientation implicit in its name or objects, absent an evidentiary link to unlawful conduct. While the Court was careful to disclaim any ruling on decriminalization or same-sex marriage, the decision represents an important, if narrowly defined, advance in the constitutional protection of associational rights for sexual minorities in Kenya, and its closely divided reasoning on the scope of article 27(4) is likely to remain a point of contention in future litigation, including the pending appeal on the constitutionality of Sections 162, 163 and 165 of the Penal Code.
10. Reference(S):
Constitution of Kenya 2010
Non-Governmental Organisations Co-ordination Act 1990 (Kenya)
Non-Governmental Organisations Co-ordination Regulations 1992 (Kenya)
Penal Code (Kenya)
NGOs Co-ordination Board v Eric Gitari & 5 Others, Petition No 16 of 2019; [2023] KESC 17 (KLR).
Eric Gitari v Non-Governmental Organisations Co-ordination Board & 4 Others, Petition No 440 of 2013; [2015] eKLR.
EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae), HC Petition 150 & 234 of 2016 (Consolidated); [2019] eKLR.
Attorney General of Botswana v Thuto Rammoge and 19 Others, Civil Appeal No 128 of 2014.
Zhdanov and Others v Russia, App Nos 12200/08, 35949/11 and 58282/12.
Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).
Salgueiro da Silva Mouta v Portugal (1999) Reports 1999-IX.
Sidiropoulos and Others v Greece (1998) App No 57/1997/841/1047.
