Case Summary and Outcome

Article 36 of the Kenyan Constitution guarantees the right to freedom of association for all persons. This includes members of the LGBTI community. By not allowing an NGO focused on protecting the rights of the LGBTI community, the Non-Governmental Organizations Coordination Board (the Board) violated that organization’s constitutional right to association. Accordingly, the Board’s decision was overturned, and they were directed to allow to the NGO to register.

Facts

Eric Gitari attempted to register a non-governmental organization (NGO) seeking to advance human rights in Kenya. Specifically, the NGO was meant to focus on the violence, discrimination, and other human rights violations regularly perpetrated against the LGBTI community. The Board, the government entity tasked with coordinating and regulating NGO activity in Kenya, rejected the application due to the NGO’s name including references to gays and lesbians. In Kenya, gay and lesbian conduct has been criminalized. The Board has the authority to reject an NGO whose name is, “in the opinion of the Director[,] repugnant to or inconsistent with any law or is otherwise undesirable.”

After multiple, unsuccessful attempts to revise the name, Gitari filed suit against the Board for declaratory relief, arguing that the failure to recognize the NGO was a violation of his and others’ constitutionally guaranteed right to assemble and requesting an order of mandamus to force the Board to register the NGO.

Decision Overview

The High Court of Kenya at Nairobi focused its analysis on two main issues: 1) whether gay, lesbian, transgender, bisexual, and intersex individuals have the right to assemble under Kenya’s Constitution, and 2) if they do have that right, whether the Board’s decision to refuse the NGO’s application violated that right.

Article 36 of the Kenyan Constitution holds that any person has the right to freedom of association, including the right to form, join, or participate in the activities of any association. Further, it provides that any legislation that requires registration of a group must conform to the principal that such denial of a registration must not be unreasonable. The Court initially concluded that the NGO is a person under the Constitution, as organizations are defined as persons elsewhere in the Constitution. Accordingly, the NGO is guaranteed the right to freely assemble.

The Court then addressed the legal effect of laws preventing homosexual acts as they affect the right to assemble.  While there are laws prohibiting homosexual activity in Kenya, those laws have no effect on the fundamental right to association. Rather, the right to freely assemble cannot be applied to prejudice any group, regardless of how anyone views their opinions. Only if the NGO had been acting illegally could the Board have prevented its right to form an association. As the NGO was only seeking to promote the equal rights and protection of the LGBTI community, not to actively promote or participate in the illegal activity of homosexual intercourse or marriage, the Board could not block its right to assembly under the illegality exception.

The Board further contended that it had not rejected the NGO’s registration entirely, but argued that it rather had an issue with its name. The Board asserted that once a proper name was submitted the NGO would be allowed to register. The Court also rejected this distinction, holding that regardless of the reasoning behind the rejection, rejecting the name in this context was equivalent to rejecting the NGO as a whole, which was on its face a violation of the freedom of association.

The Court, after finding the rejection of the NGO’s application to be a limitation on the freedom of association, then turned to the question of whether such a limitation was justifiable. Under Article 24 of the Kenyan Constitution, freedoms guaranteed, such as the freedom of association, can only be limited if it is reasonable and justifiable in a “democratic society based on human dignity, equality and freedom.” The Board relied on the criminal ban of certain sexual activities to argue that its limitation was reasonable. However, as noted above, the NGO was not actively engaging in any of those illegal activities itself and was therefore not in violation of any law. Additionally, those criminal bans do not speak to the rights of those in the LGBTI community to exist or associate with each other. As such, there is nothing in the law that would allow the Board to be reasonably justified in limiting the freedom of association of the NGO.

Moreover, the Court found the Board had actually relied on moral and religious grounds in deciding not to register the NGO. In the Court’s view, that decision was tantamount to the exact discrimination that is banned under Article 27 of the Constitution. Again, the Court noted that the Constitution does not cease to apply just because a particular group may be seen as undesirable or unpopular. Rather, Article 27 guarantees that all individuals are equal before the law. Not allowing the NGO to register for its views was a violation of the non-discrimination doctrine. Accordingly, the Court held that the Board’s ban violated the Constitution and ordered the Board to allow the NGO to register with its chosen name.