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Nairobi court allows gays to form union

It is official. Gays and lesbians can now register an association to push for their rights, a three-judge bench has ruled.

In a landmark judgement at the High Court in Nairobi, Judges Issac Lenaola, Mumbi Ngugi and George Odunga compelled the Non-Governmental Organisation Board to register their union.

The board had earlier rejected their application on moralistic and religious grounds.

The judges ruled that the Constitution allows recognition and protection of the rights of “every person” and minority groups such as gays and lesbians.


The judges said the Attorney-General, the NGO board and parties that had opposed the registration of the gay association “may or may not be right about the moral and religious views of Kenyans, but our Constitution does not recognise limitation of rights on these grounds.”

“The Constitution protects people with unpopular views and minorities — regardless of the majority’s views,” the judges said.

The court, especially one exercising constitutional jurisdiction with regard to the Bill of Rights, the judges ruled, upholds the law and not popular views or those of the majority.

The judgement comes in the wake of a petition filed by Mr Eric Gitari who sought to register an NGO “to advance human rights”, and specifically to address violence and human rights abuses suffered by gays and lesbians.

The board rejected his application on the basis that the people whose rights the proposed NGO is seeking to protect are “gay and lesbian persons.”


He then moved to the High Court on September 2, 2013 seeking a determination on whether he is a “person” as protected in Article 36 of the Constitution, and if so, whether his right to freedom of association had been infringed.

The board, through the AG, defended its actions, saying the petitioner’s right to freedom of association has not been infringed.

The board said the limitation can be justified on the basis of the criminalisation of homosexual intercourse in the Penal Code.

In his petition, Mr Gitari said he is not seeking to perpetuate criminalised conduct but he is seeking the equality of lesbian, gay, bisexual, trans, intersex and queer persons in Kenya.

“The board violated the petitioner’s right to non-discrimination by refusing the names put forward on the basis that the proposed organisation sought to advocate for the rights of people who are not socially accepted,” the judges said.

The judges said in their understanding of the objective of the proposed organisation, the petitioner is seeking the protection of people whose sexual orientation is either gay, lesbian or transgender.

They said the petitioner is entitled to exercise his guaranteed freedom to associate.