High Court Judgment on Petition 440 of 2013

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April 24, 2015
Ref: TR-4-P-15
Press Release: High Court Judgment on Petition 440 of 2013
The High Court of Kenya, in a groundbreaking precedent, ruled on April 24, 2015, that lesbian, gay,
bisexual, intersex, transgender and queer (LGBTIQ) persons can formally register their organizations and
welfare groups. That popular morality and religion should not be basis for limiting rights in Kenya.
The decision was issued in response to a petition filed by the National Gay and Lesbian Human Rights
Commission (NGLHRC) to register under the Non-Governmental Organizations Coordination Board Act. The
Non-Governmental Organizations Coordination Board had rejected the request to register NGLHRC more
than five times since April 2012. In denying the application, the board said that the name of the
organization was “unacceptable,” and that it could not register it because Kenya’s penal code “criminalizes
gay and lesbian liaisons.”
In their judgment, the three judges held that AG's preliminary objection that the petition was premature
and baseless was not meritorious and ruled that the petition is warranted and petitioners do have a right to
form an organization.
Regarding the petitioner’s prayer to have the court give interpretations on what the Constitution means by
the words "Every person" when prescribing rights, the court ruled that the words every person includes all
despite their sexual orientation.
The court also found that the NGO Board violated Article 36 of Constitution (Freedom of Association) when
they frustrated the registration application by the petitioners. The Constitutional Court further held that
morality and religion should not be justification for limiting rights in an open and democratic society under
article 24 of the Constitution of Kenya. An order of mandamus has been issued to the NGO board to comply
and register the NGLHRC
Mr. Kinyanjui for the interested party (Kenya Christian Professional Forum) shall seek to appeal the
judgement. The court has granted him leave to.
This judgement from the constitutional court is ground breaking; it marks a historic momentum towards the
inclusion of sexual and gender minorities into the Kenyan democratic space. It alludes to a country that is
keen to becoming much open and democratic despite the challenges. By underscoring the constitutional
morality of inclusion at the expense of religious morality, the judges honoured the spirit and aspirations of
Kenyans who enacted this constitution after a period of post-election violence that had been simmering
after years of virulent exclusion of others. This rejection of popular morality and religion limitations to rights
will hopefully be a beckon of jurisprudence to other thirty eight African nations that are still moral
arguments to limit rights of minorities.
We welcome the appeal by the Kenya Christian Professional Forum and look forward to enhancing the
equality jurisprudence of our nation through the legal process. As we welcome the victory, we honour the
path of struggle by many activists and allies who have walked before us and helped us along the way. We
share our victory with the Kenya LGBTIQ movement, the LGBTIQ litigation collective, our domestic and
international research teams and the stellar counsels for coming through.
Aluta Continua!
Eric Gitari
Executive Director, NGLHRC
[email protected]

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