Major victory for Kenyan gays as court says they have equal rights

Gay and lesbian Kenyans have won a huge victory after a court found a government agency guilty of discrimination for failing to register an LGBTI rights group.

According to the Daily Nation, The High Court in Nairobi on Monday ordered the country’s NGOs Coordination Board to recognise and register the organisation.

The board had previously refused to register the group because the six names proposed by Eric Gitari, Director of the National Gay and Lesbian Human Rights Commission, were all “unacceptable”.

The board also claimed that the group could not be registered because the nation’s penal code “criminalises gay and lesbian liaisons.”

The High Court, however, ruled that the Kenyan Constitution protects the rights of “every person” – including gays and lesbians. It found the board guilty of “failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice.”

Judges Issac Lenaola, Mumbi Ngugi and George Odunga further ruled that, “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.”

They added that the NGOs board “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 judges also confirmed that the board discriminated against Gitari “by refusing to accept the names proposed.”

In July last year, the same court handed down a judgement ordering the NGOs board to register another group, Transgender Education and Advocacy.

The National Gay and Lesbian Human Rights Commission welcomed Monday’s ruling, describing it in a statement as “a historic momentum towards the inclusion of sexual and gender minorities into the Kenyan democratic space.”

“This rejection of popular morality as a limitation to rights will hopefully be a beacon of jurisprudence to [the] other thirty eight African nations that still [use] moral arguments to limit rights of minorities,” said Gitari.

He added he was unshaken by the court grating leave to appeal its ruling to the Kenya Christian Professional Forum and looked forward to further defending LGBTI equality in the courts.

Despite the positive moves by the Kenyan judiciary, gay sex remains illegal in Kenya, with penalties of between five to 14 years imprisonment. Under the 2010 Constitution the criminalisation of homosexuality may well be unconstitutional, but this has not yet been challenged in the courts.

A 2013 survey found that 90% of Kenyans believe that homosexuality should not be accepted by society.