[This is a guest post by Joshua Malidzo Nyawa. The judgment of the Supreme Court of Kenya has been previously analysed on this blog, here.]
Introduction
On 24th February 2023, Kenya’s apex Court delivered the much-awaited decision in NGO coordination board versus Eric Gitari and 5 others thereby bringing an end to a 10-year epic court battle. In 2013, the NGO coordination board wrote a letter to Eric Gitari informing him of their refusal to register a Non-Governmental Organization (NGO) seeking to champion the rights of the LGBTIQ community in Kenya. Eric Gitari had sought to reserve for the registration of his NGO any of the names: Gay and Lesbian Human Rights Council; Gay and Lesbian Human Rights Observancy; Gay and Lesbian Human Rights Organization; Gay and Lesbian Human Rights Commission; Gay and Lesbian Human Rights Council; and Gay and Lesbian Human Rights Collective.
In its refusal to approve any of the names, the NGO coordination board was of the view that sections 162, 163, and 165 of the Penal Code criminalize gay and lesbian associations; and that further, the names could not be reserved because of the terms ‘gays’ and ‘lesbians’ in the proposed titles. Eric Gitari challenged this administrative action at the High Court arguing that it violated article 36 of the Constitution (freedom of association) and Article 27(freedom from discrimination). The High Court in Petition 440 of 2013 agreed with the petitioner and held that the refusal to reserve the name for registration of the NGO was unconstitutional. The NGO coordination board and the Attorney general appealed to the Court of Appeal on several grounds. The Court of Appeal (3:2 judges) in Civil Appeal 145 of 2015 agreed with the High Court that the action was unconstitutional. Undeterred, the NGO coordination board and the Attorney general moved to the apex Court, arguing that the High Court and the Court of Appeal were wrong in their interpretation of the law.
The epic Court battle: from the High Court to the Supreme Court
At the High Court, the petitioner alleged that the impugned action violated articles 36 and 27. The government’s response was threefold. Firstly, that the freedom of association is not absolute and can be limited. Further that sections 162, 163, and165 of the penal code criminalise sexual acts associated with homosexuals, and that therefore, an association to promote homosexuality cannot be formed. On discrimination, the government responded by noting that Article 27 provides for the grounds of discrimination, and sexual orientation is not one of them. Thirdly, the government stated that homosexuality was against Kenyan culture and morals. As noted in the introduction, the High Court found in favor of the petitioner and this finding was upheld by the Court of Appeal with two judges dissenting. The NGO coordination board and the Attorney General moved to the Supreme Court, arguing that the High Court and the Court of Appeal were wrong, and further that the lower Courts had amended the Constitution through a back door. I will analyze the fundamental findings of the Supreme Court below:
Freedom of association
The Supreme Court, like the lower Courts, starts by making a disclaimer that the case before the Court was not about the decriminalization of homosexuality in Kenya but rather, it was about the registration of an NGO seeking to champion human rights. The Supreme Court finds that the freedom of association serves an important purpose in a democracy and can only be limited per Article 24 of the Constitution (the limitation clause) which requires that a human right can only be limited by a provision in the law. In considering whether there is a law prohibiting the registration of an NGO seeking to promote and protect the rights of the LGBTIQ community, the Court considered the argument advanced by the board and the Attorney General that sections 162, 163, and 165 of the penal code prohibit the registration of the NGO.
The Court (3:2 judges) makes three fundamental findings. Firstly, Article 36 of the Constitution provides that every person has a right to association and no one (class) is excluded from benefiting from this freedom. Secondly, that the provisions of the penal code do not prohibit the registration of the NGO but rather prohibit the act of engaging in sexual activity ‘against the order of nature’. Thirdly, that acts that are criminalized in the sections can be committed by anyone and not only members of the LGBTIQ community since the provisions use the term ‘any person”.
The Supreme Court should be applauded for the correct interpretation of the law. Indeed, Article 36 grants the right to every person to form an association and does not exclude any class from enjoying the freedom. A contrast can be drawn with other provisions of the Constitution that limit the beneficiaries of rights, such as Article 35, which provides that every citizen has the right of access to information, Article 38 which provides that every citizen is free to make a political choice, Article 46 which limits the enjoyment of the right to consumers and finally, article 50(2) which limits the rights to an accused person. For one to benefit from these rights, one must meet the precondition of either being a citizen, consumer, or accused person respectively. However, this is not the case for Article 36 which only requires one to be a person. The Constitution uses the term “every person”, and there is no exclusion whatsoever. This is to mean that freedom of association must be enjoyed by every member of the Kenyan society- the poor, the rich, the citizens, the social outcasts, etc.
Further, the Supreme Court makes the important finding that although certain sexual practices have been outlawed in Kenya by virtue of sections 162, 163, and 165 of the Penal Code, these acts are committed by people irrespective of the gender and sexual orientation of the perpetrator. Associations can be formed for the decriminalization of offences. The mere fact that an association has been formed to fight this course does not make it illegal. There is nothing illegal or unlawful in advocating for a change in the law. At least the majority of us were alive when we witnessed campaigns against the criminalization of abortion and death penalty, and we didn’t see the campaigners being classified as murderers or would-be murderers. Then why should the NGO be seen as violating the penal provisions? One must commit the prohibited acts to become a criminal and those acts can be committed by anyone. A society such as ours that claims to be proud of its diversity in the preamble of the Constitution cannot be in the business of criminalising unpopular organisations. The Court of Appeal for instance held in Attorney General vs Randu Nzai that the Mombasa Republican Council’s agenda of secession is not unconstitutional and that they had a right to demand secession but only within the law.
It is not denied that the members of the LGBTQ are vulnerable to corrective rape, violence, exploitation, and stigma, and the NGO was formed to fight for their human rights. There is nothing unlawful about this.
Freedom from discrimination
A reading of the judgment shows that the dissenting judges concentrated their energies on this subject. The majority, in a creative way, finds that discrimination based on sexual orientation is prohibited by Article 27 even though sexual orientation is not included as one of the prohibited grounds. The Supreme Court finds that article 27 uses the word ‘including’ to mean that the list is not exhaustive. Secondly, the Supreme Court relies on foreign jurisprudence to hold that the word sex also includes sexual orientation. The dissenting judges are however straightforward and their findings can be summarized as follows: ‘if the drafters wanted to include sexual orientation as a ground, they should have done so’. Indeed, Justice Ouko spends a lot of time reproducing the history of Constitutional drafting in Kenya.
However, the dissenting judges miss a fundamentally important point about Constitutional interpretation by adopting the originalism theory which is prevalent in the US, and insist on looking for the drafters’ intent and only asking the question ‘what did the drafters mean at the time of drafting the provision’. This is a minimalist view and cannot be used to interpret a transformative Constitution such as ours. Judges are not merely mechanics or computers that are only expected to reiterate the words of a provision. They are the guardians of the foundational values of our Constitution and have a burden of ensuring that these Constitutional values are protected and enforced. One way of doing this is by ensuring that the Constitution is a living thing and continues to adapt to new circumstances. The Supreme Court in one of its first decision advanced this argument when it held in the division of revenue bill advisory opinion that a Constitutional text may not properly express the minds of the framers and ‘and the minds and hands of the framers may also fail to properly mine the aspirations of the people’. The Supreme Court also found that the ‘limitations of mind and hand should not defeat the aspirations of the people’. The Supreme Court offered a way out in the following words ‘It is in this context that the spirit of the Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras’.
History alone as advocated by the dissenting judges cannot provide all answers for modern situations and judges must resort to the values in the Constitution to deal with modern circumstances. After all, ours is a living Constitution and we can’t be tied down by the ‘dead hands of the past’. Further, for a Constitution to survive and have a meaningful impact, it must adapt to modern circumstances that the drafters did not imagine. A Constitution must work for the people of today and an interpretation that is fixated on the drafters’ intent is simply unworkable in our ever-growing and dynamic society. It is for this reason that US Supreme Court Justice Brennan once pointed out that ‘the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.’
The use of the words ‘including’ and ‘such as’ in Constitutional drafting is an indication that the drafters contemplated that new groups of people deserving the protection of the law would arise. Put differently, drafters contemplated the categories that they had identified would evolve. Indeed, these groups are just examples, but not the only contemplated groups. By using the term ‘including’, the drafters admitted that they did not have a monopoly over wisdom and that with new generations new grounds would emerge. Simply, we are human beings and we are not static but ever-evolving with new ideas.
Take away
It is important to note that the 2010 Constitution is progressive and is intended to transform Kenya into a society that is founded on the values of equality, dignity, pluralism, inclusivity, tolerance, and diversity. It is therefore the role of Courts to midwife this transformation by continuously breathing life into the Constitution, and not by sucking the little life from it. Fortunately, the Supreme Court sparks new hope for the sexual minorities in Kenya by appreciating that the Constitution was not meant to serve the past and present generations alone but it is meant to serve even the unborn and it should not be allowed to be a ‘lifeless museum piece’. Further, the apex Court correctly appreciates its Constitutional role of protecting the minorities or outcasts in society, and that their enjoyment of the Constitutionally guaranteed rights is not subject to the views of the majority. The Supreme Court joins other progressive Courts in the global south such as the Indian Supreme Court, Botswanan High Court and the Constitutional Court of South Africa that have been effective in protecting the rights of sexual minorities.