Supreme Court Okays Registration of an NGO for Kenyan LGBTQ Community

The Supreme Court has dismissed an appeal by the NGO Co-ordination Board seeking to quash a High Court order requiring it to register an NGO to advocate for the rights of the LGBTQ community in Kenya.

The National Gay and Lesbian Human Rights Commission (NGLHRC) applied for registration in 2012 but the NGO Co-ordination Board rejected the application on grounds that the proposed name violated sections 162, 163 and 165 of the Penal Code, which criminalize gay and lesbian liaisons.

NGLHRC moved to the High Court to challenge the board’s decision, arguing that it violated its right to freedom of association under Article 36 of the Constitution and its right against discrimination under Article 27.

The High Court ruled in favor of the petitioner and directed the board to register NGLHRC as an NGO within 30 days. The board then appealed to the Court of Appeal, which upheld the High Court’s decision, prompting it to move to the Supreme Court.

In its ruling, the Supreme Court determined that NGLHRC was not required to exhaust internal remedies under the NGO Coordination Act, as neither the Act nor the regulations provide for any internal dispute resolution mechanism for the administrative action concerned.

The apex court further held that the board’s decision was not only discriminatory but also violated the NGO’s right to freedom of association under Article 36 of the Constitution. The court noted that 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.

“The Court determined that the use of the word “sex” under Article 27(4) does not connote the act of sex per se but refers to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex, or otherwise. The court held that the word “including” under the same Article is not exhaustive, but only illustrative and would also comprise “freedom from discrimination based on a person’s sexual orientation,” the Supreme Court judgement reads in part.