Why Gays Are Suing Kenya’s Government?

Denis Nzioka

Kenya has refused to allow an LGBTI group to register its existence legally. But does this denial breach gay, bi, trans and intersex people’s constitutional rights?

On Wednesday (30 October), Kenya’s High Court will hear a petition from my organization, the National Gay and Lesbian Human Rights Commission (NGLHRC). We are complaining about the Kenyan government’s refusal to register the commission. The government’s NGO Board declined our application, because of our presumed support or promotion of ‘homosexual’, ‘gay’ and ‘lesbian’ activities and ‘same-sex marriages.’ This court case – with NGLHRC as the plaintiff and the NGO Board and the Attorney General, Githu Muigai as the first and second respondent – will be a landmark case.

The petition will ask for an interpretation of the freedom of association. Do we have the constitutional freedom to register and operate lesbian, gay, bisexual, transgender and intersex (NGLHRC) organizations in the country?

We first asked the NGO Board to register us by reserving the names ‘National Gay and Lesbian Human Rights Commission’ ‘National Coalition of Gays and Lesbians in Kenya’ and ‘National Gay and Lesbian Human Rights Association’.

We had done all the paperwork but the NGO Board responded by saying simply ‘the names are not acceptable’.

The NGO Board told us it was following the NGOs Regulations of 1992. The rules say the director has to reject a name which is ‘repugnant to or inconsistent with any law or is otherwise undesirable’. According to court records filed by NGLHRC, the reasons given by the NGO Board for rejecting the names were they were ‘not acceptable’ and ‘the Penal Code under Section 162 criminalizes gay and lesbian liaisons’. But it’s the constitutional right of NGLHRC to establish a non-governmental organization to address the plight of homosexual, bisexual and transgender individuals in society. That is guaranteed under Article 36 of the Constitution, which provides the right to associate by forming, joining and or participating in the activities of any association of any kind.

Registering NGLHRC is not part of any efforts to promote gay activities which are already criminalized or same-sex marriage. But we want to further the well-being of gay people who are a minority group in Kenya, and who enjoy equal rights and freedoms as espoused in the Bill of Rights and the Constitution. The NGLHRC seeks to do research, offer urgent support, promote and advocate on human rights issues for LGBTI people, groups and communities in Kenya. Core to our mandate is to contribute to the development of domestic and international law, for LGBTI equality. We also want to legal, economic, social, cultural and other welfare programs for individuals and our whole gay, bi, trans and intersex community. Despite this, the NGO Board stood its ground and refused us. This decision actually contravenes the NGO Regulation Act. The law stipulates a name can only be rejected if it’s the same or similar to another registered name or the director decides it’s ‘repugnant or inconsistent with any law or is otherwise undesirable’.

The NGO Board alluded to the fact the names would be repugnant to or inconsistent with the Penal Code. But the laws in Kenya only criminalize same-gender sex acts and not the existence of gay persons. Nor does the current legislation take away our right to associate or enter into associations of our choice.

The NGO board did not offer the NGLHRC an opportunity to be heard exhaustively. So there is no way the board could satisfy itself the proposed activities of NGLHRC were not in national interest or we had provided false information. Actually the NGLHRC’s are in the national interest as we would conduct accurate fact finding, urgent action, research and documentation, impartial reporting, effective use of media, strategic litigation, and targeted advocacy in partnership with local human rights groups on human rights issues relevant to the gay and lesbian communities of Kenya. So the NGO Board’s refusal is a gross violation of human rights and tantamount to inhuman and degrading treatment as it looks at homosexuals as criminals with no right to associate in any manner whatsoever.

In addition, the refusal to register – even after being furnished with documentary evidence, articles and memos of NGLHRC – is an outright denial of the right to access equality in the face of the law. It’s a denial of the right to expression and the freedom to access information irrespective of one’s sexual orientation. Our petition this week will ask the court to give a judicial interpretation of Article 36 of the Constitution of Kenya around gay and lesbian people living in Kenya. We will also ask for declaration orders, direction and writs to safeguard and prevent violation of the Constitution about this.

NGLHRC specifically seeks the court to declare the words ‘every person’ in Article 36 of the Constitution includes all living persons in Kenya despite their sexual orientation. And we are asking the court to decide the NGO Board contravened provisions of Article 36 by failing to register us. The Constitution helps us in other ways. Under Article 21, all State organizations and public officers have a duty to address the needs of vulnerable groups in society including members of minority and marginalized communities. And Article 2 says the State shall not discriminate directly or indirectly against any person on any grounds including but not limited to sex. Article 28 rules every person has an inherent dignity and the right to have that dignity respected and protected. Many LGBTI groups, facing outright rejections of their applications, have been forced to resort to changing their names, objectives and activities. Further, they have not been able to conduct any financial or legal transactions or engage in activities lest they are considered as illegal since they don’t have any legal recognition. Worse still, many are forced to hide their identities and members engagements and activities out of fear of being discovered.

Gay and lesbian groups and associations have a right enjoy government recognition on an equal basis with other associations through registration. That is why we are suing.

Denis Nzioka is deputy director of the National Gay and Lesbian Human Rights Commission (NGLHRC).