Kenya: LGBTQ Non-profit Gets Greenlight From High Court

Kenya's Court of Appeal has allowed for activist Eric Gitari to register a non-profit organization aimed at raising awareness and protecting members of the LGBTQ community. Gitari co-founded the National Gay and Lesbian Human Rights Commission (NGLHRC), which released a statement commending the court's decision.

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The attempted registration of the organization was originally rejected by the Non-Profit Organization Coordination Board. The basis for the rejection was that the proposed NGO would promote homosexuality and was also deemed “unacceptable” because the organization had the words “gay” and “lesbian” in its name and Kenya “criminalizes gay and lesbian liaisons.”  

Homosexuality is viewed as taboo due to the country's strong religious ties to Christianity and Islam. 

The High Court, led by Justices Philip Waki, Asike Makhandia and Martha Koome, recognized that the proposed NGO "is not for the promotion of the sexual acts 'against the order of nature' prohibited by the Penal Code, nor is it to advance pedophilia, as suggested by the Board, which are criminal offenses to which clear penal consequences are provided."

Gitari has emphasized to the High Court that the objective of the organization is to raise awareness of the human rights abuses suffered by those in the LGBTQ community. Justice Philip Waki acknowledged that the proposal is free of any unlawful or criminal objective and that the formation of such an organization is not punishable by law.

"LGBT issues are rarely discussed in public, but there is no doubt that it is a controversial issue. The reality is that this group does exist and we can no longer deny them," Judge Waki said.

Other justices involved in the decision, Isaac Lenaola, Mumbi Ngugi and George Odunga stated that Gitari's right to form an association was protected by the Constitution. The bench also stated that the Board's decision to reject his proposal based on sexual orientation of beneficiaries violates Gitari's right to non-discrimination. 

The court's decision received backlash from the Board, and justices Daniel Musinga and Roselyn Nambuye, who argue that the proposed NGO is "hell-bent on destroying the cultural values of Kenyans, and must therefore not be allowed."

The bench said that while those opposing the decision "may or may not be right about the moral and religious views of Kenyans... Our Constitution does not recognize the limitation of rights based on these grounds."

This breakthrough decision comes before another important issue for the LGBTQ community.

On May 24, the court will decide whether to keep or scrap a colonial-era law criminalizing homosexuality.

Njeri Gateru, co-founder and executive director of the NGLHRC, hopes this decision will set a positive precedent for this decision, as well as other rights organizations in the country, as well as the rest of the continent.