Kenya's Supreme Court Sides With LGBTQ Rights Group in Decade-Long Legal Battle

The Kenya Supreme Court ruled that Kenyan authorities where wrong for barring its gay community from registering a gay rights organization on Friday, Feb. 24. In a three-to-two, the Judges decided that Kenya's Ngos Coordination Board (NGO board) should not have banned the National Gay and Lesbian Human Rights Commission (NGLHRC) from registering their organization in 2013. It should also be added that they affirmed gay sex is still illegal in the country.

According to the judgment, the board could not rightfully deny the NGLHRC agency the right to register because "it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants".

According to the NGO Board website, they are responsible for "inter alia registering, facilitating and coordinating all national and international NGOs operating in Kenya; advising the government on their contribution to national development; providing policy guidelines for NGOs to align their activities with national priorities and receiving and analyzing NGOs annual reports."

Because the Supreme Court is Kenya's highest court, its decision cannot be overturned.

The judgment ends a decade-long legal saga that was initiated in 2013, when when former executive director of the NGLHRC, Eric Gitari confronted the head of the NGO Board for turning him down when he tried to register an NGO under a pro-LGBTQ name. The 2023 ruling is not the first time that the judges have ruled in favor of the NGLHRC. In 2015, judges ruled in favor of Gitari and his team at Kenya's high court, and in 2019, the Court of Appeal also ruled in favor of the gay rights organization.

In spite of the ruling, there is an underlying bitter-sweetness for the Kenyan gay community, because the court still upholds that gay sex is criminal, and punishable by up to 14 years in prison. Kenya's gay community has experienced a lot of unrest over the past few years, and the recent murder of gay rights activist Edwin Chiloba heightened tensions for the gay community. The added weight of the legal consequences of same-sex relationships have further heightened homophobic sentiments.

In a statement to BBC News, NGLHRC's current director Njeri Gateru said that the decision was a victory for the gay community.

"The Supreme Court's decision to uphold the lower courts' rulings is a triumph for justice and human rights," said Gateru, "At a time where the Kenyan LGBTIQ+ community is decrying the increased targeting and violence; this decision affirms the spirit and intention of the Constitution to protect all Kenyans and guarantee their rights."