It was not all rosy for same-sex groups at the Supreme Court as two judges strongly differed with their colleagues over registration of same-sex associations in Kenya.

Although the majority of three judges had their way, the minority of Justices Mohammed Ibrahim and William Ouko had their say with dissenting opinions that Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQI) activities are illegal and have no place in our society.

The two judges said they could not understand how their colleagues, Justices Philomena Mwilu, Smokin Wanjala and Njoki Ndung'u allowed registration of LGBTQI associations when the Penal Code expressly criminalises sexual activities between persons of the same gender.

“We fail to see how they allowed the formation of associations with the very terms that imply or whose declared purposes are in support of LGBTQI actions that are against the law and expressly banned by the Penal Code,” ruled the judges.

The majority judges had in their decision declared that it was discriminatory for the Non-Governmental Organisations (NGO) Coordination Board to deny LGBTQI people opportunity to form associations to champion their rights.

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According to the judges, it would be unconstitutional to limit the right of association through denial of registration of a group purely on the basis of sexual orientation, and there was no basis to refuse registration of gay and lesbian associations proposed by LGBTQI activist Eric Gitari.

Two other Supreme Court Judges, Chief Justice Martha Koome and Justice Isaac Lenaola did not sit on the bench because they had previously handled the case at the High Court and Court of Appeal.

Judges Ibrahim and Ouko, in their dissent, stated that as long as Sections 162, 163 and 165 of the Penal Code exist, the NGO Board’s refusal to allow registration of associations which include the terms “gays” and “lesbians” cannot be considered unreasonable, irrational or illegitimate.

Sections 162 and 165 of the Penal Code criminalise homosexual relationships, while Section 163 prescribes a penalty of imprisonment for seven years for any person who has carnal knowledge of another person against the order of nature.

“Democratic societies are governed by laws and Kenya is no different. The moral foundations of our society serve as the basis for our laws found in the Constitution and the various Statutes enacted by Parliament. The laws criminalising LGBTQI must be observed and respected,” ruled the judges.

The two judges stated that the decision to repeal or amend laws to accommodate LGBTQI community in Kenya can only be made by the people from whom all sovereign power flows, or by their elected representatives, and again only after the involvement of the people.

“If the people of Kenya desire to have these laws removed, then legislators in their capacity as the voice of the people can enact, amend, and repeal the Penal Code. However, until such time, Sections 162, 163 and 165 remain in our statutes books as law and must be obeyed,” they ruled.

The judges in their determination of the dispute singled out two main issues; on whether the NGO Board decision to refuse registration of LGBTQI associations violated Article 36 of the Constitution and whether it was discriminatory contrary to Article 27(4) of the Constitution.

Article 36 of the Constitution guarantees every Kenyan the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.

Justice Ibrahim in his analysis stated that the rights of association are not absolute and can be limited as provided under Article 24 of the Constitution.

“The drafters of the Constitution and indeed the people of Kenya who ratified the Constitution did not intend for the formation of groups whose activities or objectives were against the law or the Constitution to be included, and that is why some rights can be limited,” ruled Ibrahim.

Justice Ouko stated that the NGO Board had good and justifiable reasons for refusing to register LGBTQI associations and that as long as their decision was made in good faith in adherence to the law, they cannot be said to have violated Article 36 of the Constitution.

He added that under Section 14 of the NGO Act, the Board has power to refuse to register any association if the association does not meet certain specified conditions.

“The Board could reject an application if it was satisfied that the proposed activities or procedures of the association were not in the national interest, were repugnant or inconsistent with any law or were otherwise undesirable,” ruled Ouko.

Justice Ouko declared that since Sections 162, 163 and 165 of the Penal Code criminalise homosexuality, it is unfathomable how the NGO Board would register an association whose proposed objectives are in furtherance of activities that are contrary with the law.

The judge was in agreement that instead of using the courts to further the rights of LGBTQI, the best approach would be to introduce legislative reforms, including amendment to the Penal Code and repeal of Sections 162, 163 and 165.

Justice Ouko stated he was not in agreement with the reasoning, conclusions reached and final orders made by the majority that the refusal to register LGBTQI associations amounted to discrimination.

“There is a clear distinction between sex and sexual orientation. I believe that in Article 27(4) the phrase sexual orientation was deliberately omitted because they only intended to guarantee the right against discrimination on the ground of a female or male gender,” ruled Ouko.

The judges emphasised that the enjoyment of rights must be within and in conformity with the existing law and that gays and lesbians have no right because their liaisons are prohibited by the Penal Code.

They added that they could not allow registration of any association to champion the rights of gays and lesbians liaisons as the same goes against the order of nature.