The Supreme Court has declined to overturn its decision compelling the government to officially register gay and lesbian lobby groups.
In a ruling by a five-bench judge led by Deputy Chief Justice Philomena Mwilu on Tuesday, September 12, the Apex court threw out a review application by Homa Bay Town MP George Kaluma seeking to have them overturn their judgement delivered on February 24, 2023.
"Kaluma neither has he demonstrated to our satisfaction that the impugned judgment was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto," the judges ruled
"In our view, the application is a disguised appeal from this court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law. Therefore, the application stands dismissed," they added.
The judges further noted that the court could not entertain the application to review their judgement as the MP was not a party in the matter settled by the court.
"The Court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties. Consequently, we find that the applicant is not competent to seek a review of the judgment under reference," the Supreme Court held.
"The applicant (Kaluma) is an Advocate of the High Court of Kenya and a Member of Parliament. He ought to have known that his application was misconceived and such he must consequently bear the costs thereof," the judges directed.
MP Kaluma has lodged the review application at the Apex court after being aggrieved by the court’s finding that “just like everyone else, Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) persons have a right to freedom of association which includes the right to form an association of any kind”.
In their judgment, the judges had ruled in favour of the LGBTQ group and dismissed the government’s appeal to disallow their registration.
While allowing the registration of LGBTQ groups in the country, Justice Mwilu, Njoki Ndung'u and Smokin Wanjala argued that the constitution guarantees the right and freedom to associate and that it was discriminatory for NGO Coordination Board to reject the application of LGBTQI groups for registration based on their sexual orientation.
The judges also noted that the government through the NGO Coordination Board had condemned members of the LGBTQ fraternity unheard by refusing to register them.
On their side, Justice William Ouko and Mohamed Ibrahim, in their dissenting opinion, noted there was no point in registering an organization that would promote illegalities
Kaluma, however, argued that the Supreme Court “by its judgment usurped the sovereign power of the people of Kenya and purported to amend Article 27(4) of the Constitution without reference to the people."
“The Supreme Court insidiously usurped the legislative role and authority of Parliament as stipulated under Article 94(5) of the Constitution,” he said.
He also claims that the court relied on determinations of foreign courts and tribunals and failed to take into account that the said determinations were effected following Constitutional amendments.
“In determining as it did, the court relied upon and accepted to be persuaded by determinations of foreign courts and tribunals while failing to take into account the fact that the said determinations were made after changes were effected through Constitutional amendment provisions and/or legislation to include sexual orientation as a ground for non-discrimination,” the lawyer said.
According to the lawmaker, the Supreme Court disregarded the concerns and views of Kenyans on “sex” and “gender” as contained in the final report of the Constitution of Kenya Review Commission”.
Describing the judgment as contradictory and illogical, Kaluma argued that the court on one hand said it was unlawful to engage in proscribed acts of homosexuality as provided in the penal Code.
On the other hand, the MP said, the court decreed that the NGO’s Coordination Board should reserve proposed names whose objects are contrary to the law and register associations whose objects are in furtherance of proscribed acts.
“While upholding the rights of LGBTQ persons, the court failed to secure the rights and interest of the respondents who opposed the sought registration expressing concern that registration would muddle up issues relating to lesbians, gays and bisexuals persons with those of transgender and intersex persons yet there exist a clear distinction between the two groups,” Kaluma stated.
He argued that the judgment had opened the door wide to registration of associations, entities and organizations whose naming or objects are contrary to the law and inconsistent with public interest.
“Vast majority of Kenyans are irked and concerned that the subject decision offends public morality and culture of the Kenyan people. Majority of Kenyans are concerned that the Supreme Court, by the decision, has placed non-existent rights to be gay/lesbian,” he said.
In the controversial judgment, the Apex court had dismissed an appeal by the government to bar registration of gays and lesbians lobby groups, ending an 11-year legal battle by activists seeking the official registration of an LGBTQ+ organization in Kenya.
The court said the NGOs Coordination Board’s refusal to register the lobby group would violate human rights based on sexual orientation.
Even so, the court held that the country’s law – Section 162 of the Penal Code -that prohibits “unnatural offenses” (defined as having carnal knowledge with any man, woman or animal against the order of nature) was binding.
The judges said those who will contravene the Penal Code, which criminalizes “unnatural offences”, will be subjected to sanctions prescribed in the existing laws. Section 163 defines a penalty of imprisonment for seven years for the offenses.
It held that it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of sexual orientation.
The majority judges said the board’s decision to refuse registration of an LGBTQ+ group was “unreasonable and unjustified”. But they made it clear that homosexuality remains a crime in Kenya.
The petition was filed by activist Erick Gitari whose bid to register an LGBTQ+ organisation in Kenya was rejected by the NGO Coordination Board on the grounds of “Sections 162, 163 and 165 of the Penal Code which criminalizes gay and lesbian liaisons.