Kenya’s Supreme Court has entrenched the right to non-discrimination on the grounds of sexual orientation in a landmark decision affirming freedom of association for LGBTIQ persons. This decision is particularly relevant given ongoing litigation before the Court of Appeal on the decriminalisation of sexual activities between same-sex couples.

On 24 February 2023, a 3-2 majority decision of the Court in Non-Governmental Organizations Co-Ordination Board v Eric Gitari & 5 others, Supreme Court Petition No.16 of 2019 [2023] upheld the right to freedom of association for LGBTIQ persons. In so doing, the highest court in Kenya reiterated the right to non-discrimination on the grounds of sexual orientation despite this not being expressly protected under the general non-discrimination provisions of Article 27 of the Constitution.

The seemingly slim majority decision of the Court is effectively a 5-2 decision of the 7-member court. Justices Koome and Lenaola had reached similar conclusions in the same litigation before Court of Appeal and High Court respectively; both judges now sit on the Supreme Court and thus abstained.

The Court unanimously agreed that the question of decriminalisation of same-sex conduct was not the subject of the suit before it. However, the majority expressed that registering an association to champion for LGBTIQ rights has no correlation with the offence of “carnal knowledge against the order of nature” that is criminalised by Kenya’s Penal Code. The government’s refusal to register an association championing for LGBTIQ rights – in order to allegedly prevent crime and disorder – was therefore unconstitutional. The Court upheld the inherent right to freedom of association regardless of whether the views championed by any proposed association were popular or not.

Nonetheless, the lasting impact of the Court’s judgment is likely to be its precedent-setting recognition of the right to non-discrimination for sexual minorities. The Court relied on previous decisions of the European Court of Human Rights, the United Nations Committee on Civil and Political Rights, and American, Turkish, South African, and Botswanan courts to find that the reference to non-discrimination on the grounds of “sex” in Article 27 of the Constitution included the right to non-discrimination on the grounds of “sexual orientation.” In addition, the fact that the categories of listed persons in Article 27 that are prohibited from discrimination is not exhaustive means that freedom from discrimination based on a person’s sexual orientation is also protected under the Constitution.

In separate dissenting judgments, Justices Ouko and Ibrahim argued that it is implicit in the history of constitution-making in Kenya that the framers of the Constitution did not intend to protect the right to non-discrimination based on sexual orientation. They relied on Article 45(2) of the Constitution which restricts the right to marry to consenting adults of the opposite sex and the deliberations leading up to its enactment. Ultimately, the dissenting judges held that the right to non-discrimination did not extend to non-discrimination for sexual minorities. Equally, the freedom of association of LGBTIQ persons could lawfully be restricted in the interests of preventing crime and disorder. While they recognised that public attitudes to LGBTIQ persons might have changed since the passing of the Constitution, much like in the dissenting opinions in the American case Obergefell v Hodges, their view was that such questions were best left to law making or constitutional amendment processes and were not a proper question for judicial pronouncement.

Notably, the public’s reception of the Court’s decision, as reported in the media, has been mostly negative. Media reports show public backlash with commentators faulting western influence on the government. This has seen a legislator propose a bill to “criminalise homosexuality” and impose life sentences on persons who “promote homosexuality” in Kenya.

Nonetheless, it is doubtful that the now entrenched right to non-discrimination on sexual orientation grounds will be overturned. It would take either a jurisprudential U-turn by the Supreme Court or a constitutional amendment backed by a referendum to do so. Given that this right is a key issue in the pending appeal on decriminalisation of same-sex conduct, the Court seems to have, at a minimum, signalled its jurisprudential bent on the question of decriminalisation of same-sex conduct. The jury remains out on how the Court of Appeal and Supreme Court will determine this issue.

Want to learn more?

• Read: Retrogressing on the Rights to Basic Education: A Slippery Slope into Criminalising LGBT Students
• Read: Kenyan Ministry of Education Declares that ‘Religious Beliefs can Enter into Schools’
• Read: The Respect for Marriage Act as Both a Gay Rights Victory and Defeat
• Read: Khalifa v Secretary for National Treasury and Planning: A New Dawn for the Right to Access of Information in Kenya