X v. Public Prosecutor
Closed Expands Expression
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After the Governmental Organizations Co-Ordination Board (Board) failed to register Transgender Education and Advocacy (TEA) as an Non-Governmental Organisations (NGOs), TEA filed an ex parte application before the High Court of Kenya. The Board claimed that the application was not processed because the names of some of the officials did not match the names listed on the application; this discrepancy existed because these officials were in the process of transitioning their gender. The High Court found that the Board did not give a “valid ground or explanation” justifying its refusal, and the Court compelled the Board to register TEA as an NGO.
In an ex parte application before the High Court of Kenya at Nairobi, Transgender Education and Advocacy (TEA) petitioned the Court to grant an order of mandamus to compel the Non-Governmental Organizations Co-Ordination Board (Board) to register TEA as an NGO (paras 1, 2). TEA is a non-governmental organisation (NGO), and its objectives are to advocate for the human rights of transsexual people in Kenya and to fight the stigma associated with being transsexual. According to TEA, it was required by law to register with the Board prior to beginning its operations, and therefore, TEA filed an application with the Board in March of 2013 (para 4). TEA filed the paperwork and paid the fees associated with registering, but the Board refused to process the application (para 5). TEA alleged that the Board’s failure to register the organization was a statutory violation and a “breach of the rules of natural justice” (para 6).
The Board argued that its rejection of and failure to process TEA’s application and register it as an NGO was in accordance with its governing statute, the Non Governmental Co-Ordination Act, CAP134, Laws of Kenya (Act) (para 10). The Board argued that the reason for the delay in processing was because, as part of the registration requirement, organisations must submit a form with details from their proposed officials. Additionally, organisations must also submit a photocopy of the officials’ National Identification Cards and two passport photos of each proposed official (para 11).
The Board claimed that the problem with processing TEA’s application arose because the names submitted on the form did not match the National Identification Cards nor did the photos match the passport pictures (para 11). This discrepancy referred to the fact that two of the officials had made changed gender (para 12). The Board, when contacted by TEA on the status of its application, stated that it would delay TEA’s application until the name change process was official (para 13). The Board delcared that TEA’s application was not arbitrarily declined and, therefore, the Court should deny TEA’s request for mandamus (para 15). The High Court disagreed and compelled the Board to register TEA as an NGO (para 38).
The High Court addressed the two main issues in the Transgender Education and Advocacy (TEA) petition: 1) because the Non-Governmental Organizations Co-Ordination Board (Board) did not provide an explanation for postponing TEA’s application, the refusal was unreasonable, and 2) that the Board did not give a “valid ground or explanation” justifying its refusal (para 16). TEA argued that because “gender is not a requirement for registration of a Non-Governmental Organisation…there is no justification for refusal to register [TEA]” (para 20). TEA asserted that the Board’s grounds for refusing its application was not supported by the Non Governmental Co-Ordination Act, CAP134, Laws of Kenya (Act). Therefore, argued TEA, because it completed all the necessary paperwork to become an organisation under the Act, the Board’s decision not to process TEA’s application “violated [TEA’s] legitimate expectation” (paras 20, 21).
The High Court’s assessment looked at the remedy requested: an order of mandamus. The remedy, according to South Africa’s own jurisprudence, is “of a most extensive remedial nature” (para 24). The Court also looked to Article 47 of South Africa’s Constitution, which guarantees persons the “right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair” and requires that “if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, that person has the right to be given written reasons for the actions” (para 25). With these guiding principles in mind, the Court then looked at the Act itself, which the Court acknowledged gave the Board discretion in determining registrations, but acknowledged “discretion ought to be properly exercised” (para 33). The Court, relying on its power to “interfere with discretion” in certain situations, found that the Board’s failure to process TEA’s application was outside of its discretion, as the decision was “not grounded in law.” Therefore the Board had “not lawfully exercised a power bestowed upon it” (paras 34, 35). Additionally, the Court also stated that discrimination against persons and the inhibition of the right of freedom of association violates Article 27 of the South African Constitution (para 36).
The Court rejected the Board’s argument and stated that the Board “purported to justify its non-action on legally untenable grounds” (para 37). Relying on earlier case law dealing with discretionary power, the Court then introduced the proposition that in cases “which affect life, liberty or property, reasons for the decision ought to be given and if none are given the court may infer there are no good reasons” (para 37). As such, it held the Board’s decision not to process TEA’s application to be unreasonable (para 37). The Court thereby compelled the Board to register TEA as an NGO (para 38).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The opinion of the High Court in this case indisputably expands expression, requiring that the administrative body, the Non-Governmental Organizations Co-Ordination Board (Board), not abuse its statutorily granted discretion to grant applications on discriminatory grounds. The Court’s opinion affirms that for cases “which affect life, liberty or property,” there must be good reason behind the use of a discretionary decision to deny the rights of an applicant (para 37). By concluding that the Board must register the NGO, Transgender Education and Advocacy, the High Court of Kenya set an important judicial standard that can be applied persuasively in other Kenyan cases that contest this type of matter.
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