Inside Kenya's landmark queer rights victory

Eric Gitari, a Kenyan attorney and rights activist, embarked on a mission in 2013 to establish an NGO that would address the violence and abuse suffered by LGBTQ+ individuals in the country. This endeavour set in motion a protracted legal battle spanning a decade, ultimately resulting in a groundbreaking ruling that authorised the formation and registration of LGBTQ+ organisations in Kenya.

Back when Gitari had first sought to register his NGO, the state-run Non-Governmental Organisations Coordination Board declined his application on the grounds that "the people whose rights the proposed NGO will seek to protect are gay and lesbian persons."

On 12 September, 2023, the Supreme Court of Kenya upheld a decision granting Gitari’s National Gay & Lesbian Human Rights Commission (NGLHRC) the right to be registered as an NGO.

The high court had further determined that the NGOs Co-ordination Board had erred in "failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice."

Article 36 of the constitution of Kenya guarantees the right to freedom of association for every person. This includes the right to form, join or participate in the activities of an association of any kind. The article further states that registration may not be withheld or withdrawn unreasonably.

Many in the country are viewing the Court's ruling as a monumental win for a community long deprived of the right to legally register associations despite overarching guarantees of equality for all spelled out in the country’s constitution.

Moving forward, LGBTQ+ individuals in Kenya will be able to register organisations without facing any discriminatory obstacles based on their sexual orientation.

"The supreme court’s decision illustrates for us that we do have rights under the constitution," Annette Atieno, NGLHRC’s communications officer, told FairPlanet. "We pursued this court case because we knew that we have the constitution on our side and that there is no reason why we should be barred from registering."

Speaking about the importance of NGO registration, Atieno emphasised that LGBTQ+ Kenyans have faced persistent disenfranchisement by the system, leading to challenges when seeking legal remedies.

Atieno cited a 2011 study by the Kenya Human Rights Commission (KHRC) that faulted service providers such as health care practitioners, education administrators, landlords and state security agents for denying services to LGBTQ+ people. 

"Some health institutions deliberately refuse to treat LGBTI persons, schools and colleges expel students on grounds of actual or presumed sexual orientation or gender identity and the police fail to investigate and prosecute persons who perpetrate violence or violate rights of LGBTI persons," the study reads.

Annette said that under the circumstances, LGBTQ+ people in Kenya had had little to no faith in the country's justice system's capacity or willingness to address their concerns.

"At the formation of our organisation in 2012, we had commissioned a study which showed that there was an issue with access to justice for LGBTQ+ Kenyans," said Atieno. "And that is the cornerstone of our work – making sure that queer Kenyans have access to justice and access to legal redress."

The KHRC report had outlined some of the systemic injustices queer Kenyans face, explaining that LGBTQ+ people were generally discriminated against when trying to access the same services as other Kenyans.

The report also highlighted that the police were reportedly victimising LGBTQ+ individuals, which caused members of the queer community to avoid seeking police assistance altogether. Furthermore, the report revealed instances where the police declined to investigate and prosecute individuals who had violated the rights of LGBTQ+ people.

Commenting on the recent Supreme Court decision, Alvin Mwangi, the Team Lead at Youth Empowerment Movement Kenya (YEM Kenya), a youth-led advocacy movement for human rights, inclusion and diversity, opined that the development is set to send positive ripples across the region.

"The ruling sets a great precedent to other regions that freedom of association is key to any citizens of a county," Mwangi told FairPlanet.

The Plight of Kenya’s LGBTQ+ community

Mwangi shared that queer people in Kenya endure various forms of violence and stigma, including sexual and gender-based violence (SGBV) and discrimination in online platforms, schools, homes, hospitals, churches and public spaces.

"To date, there are more than 5 cases that involve murder of LGBTQ+ persons that have not been solved or are still in the courts," he said. "Queer [people] also face challenges with access to jobs and education."

He added, "A former minister for education warned in January 2022 that children who identified as queer should be moved out of boarding schools to day schools for them not to 'spread' LGBTQ+ ness. I have received cases of persons who have been threatened to be fired just because of who they are."

The September decision by the Supreme Court has led to an escalation of violence against the queer community in the country, with Reuters reporting that abuse spiked following the ruling, citing local rights activist and the head of Amnesty International Kenya, Irungu Houghton.

"Every person" encompasses LGBTQ+

At the core of this legal battle was a petition filed by Gitari seeking a judicial interpretation of whether the term "every person" mentioned in Article 36 of the Kenyan Constitution encompassed all individuals residing in Kenya, irrespective of their sexual orientation.

Relying on this article, the High Court declared that 'every person,' includes all persons living within the Republic of Kenya regardless of their sexual orientation. 

The plaintiff in the case was a dissatisfied member of parliament, Peter Kaluma. The Supreme Court ultimately dismissed his petition on procedural grounds. Kaluma has consistently expressed strong opposition to the concept of human rights for LGBTQ+ individuals in Kenya and throughout the African continent.

"There are no homosexual/LGBTQ persons in Africa. We only have Africans pretending to be LGBTQ persons so as to benefit from funding, opportunities and citizenship in states that support this perversion," he once posted on X (formerly known as Twitter).

important platform for future advocacy

Constitutional lawyer Bobby Mkangi highlighted that although the decision may have legal implications, it might not bring about a significant change in the circumstances for Kenya's LGBTQ+ community. Referencing neighbouring Uganda, which enacted one of the most severe anti-LGBTQ laws in March 2023, including the possibility of a death sentence upon conviction, Mkangi told FairPlanet that the decision might not gain widespread support and could further endanger the already vulnerable LGBTQ+ community.

"Considering the backlash the re-affirmed decision elicited, to the level of legislative activity, it doesn't change the situation of the community in Kenya," he said, adding that in certain cases the decision might even exacerbate violence and discrimination targeting the queer community considering the wide-spread support that anti-LGBTQ+ legislation often receives in the region.

"Be that as it may," he added, "[the ruling] gives the community a constitutional platform upon which to continue its fight for its rights."

'We're happy, but our houses are burning'

Atieno from NGLHRC shared that the ruling garnered significant international support, highlighting the solidarity of LGBTQ+ advocacy groups. She nonetheless depicted a grim outlook for the LGBTQ+ community in the region.

"We’ve received expressions of support from our siblings beyond our borders. The problem is that we are not the only ones under attack," she said. "So, while we are celebrating, things are going to hell in Uganda [and Tanzania]."

Tanzania's president, Samia Suluhu Hassan, in March 2023 guardedly cautioned Tanzanians against "imported cultures," in what was intepreted in some quarters to suggest a refrain from same-sex activity.

Atieno highlighted Tanzania’s long anti-LGBTQ+ crusade, which intensified during the rule of the late president John Magufuli.

"Burundi remains hostile ground," Atieno concluded. "In Somalia, you can’t even speak about the matter. Sudan is going through a war, [and] in wartime it is always the most vulnerable who are attacked first.

"Thus, while our court’s rulings are progressive legislation, and we’re happy for it here, we must acknowledge that all our houses are burning." 

Image by Juliette F.