Out in the World: Kenya court ruling in favor of LGBTQ group sparks anti-queer demonstrations

  • by Heather Cassell, BAR Contributor
  • Friday September 15, 2023
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Anti-LGBTQ protesters in Mombasa, Kenya held placards as they chanted slogans during a September 15 demonstration against the Kenyan Supreme Court ruling that the National Gay and Lesbian Human Rights Commission can register as a nonprofit in the country. Photo: Gideon Maundu, stringer, Associated Press
Anti-LGBTQ protesters in Mombasa, Kenya held placards as they chanted slogans during a September 15 demonstration against the Kenyan Supreme Court ruling that the National Gay and Lesbian Human Rights Commission can register as a nonprofit in the country. Photo: Gideon Maundu, stringer, Associated Press

Religious leaders and members of parliament are protesting a ruling by Kenya's Supreme Court that dismissed a challenge to its earlier decision this year upholding LGBTQ organizations' right to register with the government.

At issue was Kenyan Member of Parliament George Peter Kaluma's challenge to the court in February about its decision siding with the National Gay and Lesbian Human Rights Commission's right to register as a nonprofit with the country's government.

On September 12, the high court dismissed Kaluma's motion because it failed to substantiate the claims and due to him not being a party to the case at any point during the legal process.

Kaluma claimed the court's ruling misinterpreted Kenya's Constitution under Article 27 (4) by broadening the definition of "sex" beyond man and woman referring to sexual orientation and gender identity and filed a motion asking the court to review and reverse its decision earlier this year.

In February, the judges ruled 3-2 that Kenya's NGO Coordination Board was wrong to stop the NGLHRC from registering in 2013.

Tuesday's ruling ended a 10-year legal battle launched by NGLHRC's former executive director, Eric Gitari, who challenged the board for denying the LGBTQ organization's application to formally register with the government because the organization's name included "gay" and "lesbian."

The judges ruled in February that denying an organization to register "purely on the basis of the sexual orientation of the applicants" would be "unconstitutional."

The judges' rulings in favor of the LGBTQ organization align with lower courts' rulings in favor of the organization in 2015, 2019, and this year, reported the BBC.

Gay sex is illegal in Kenya. The court upheld the British colonial-era law in 2019, the Bay Area Reporter previously reported. The court's ruling in February did not decriminalize gay sex. People charged with the crime can face up to 14 years in prison.

The ruling cannot be overturned. Yet, Kaluma pledged to challenge the court again.

NGLHRC Executive Director Njeri Gateru told reporters after the ruling, "The Supreme Court's decision to uphold the lower courts' rulings is a triumph for justice and human rights," reported the BBC.

Outright International congratulated NGLHRC, calling it "yet another significant victory for LGBTIQ people in Kenya" in a September 14 statement from the organization.

Just this week, Outright released its report "The Global State of LGBTIQ Organizing: The Right to Register and the Freedom to Operate 2023," examining the challenges and successes of LGBTQ organizations being able to legally register with national governments and operate around the world.

"International law requires governments to uphold people's rights to register organizations and participate in civil space, regardless of sexual orientation or gender identity," stated Outright International Executive Director Maria Sjödin.

Kaluma, who has consistently spoken out against LGBTQ people, argued at a news conference following the latest ruling that recognizing LGBTQ organizations was a threat to the rights of girls and women. He stated it opened the possibility of changing the definition of "sex" from man and woman to broader categories of sex and gender as seen in the West with LGBTQ, noting the current right-wing conservative war on the LGBTQ community in America.

"I challenged the power of the courts to amend the constitution to introduce foreign homosexual ideologies into the country," he defended in his petition, reported Standard Media.

Kaluma told reporters he immediately filed a bill after the ruling proposing life imprisonment for people convicted of gay sex or promoting LGBTQ issues. He also said he followed up on the family protection bill currently in committee with the speaker of Parliament to expedite the bill.

"This bill once enacted into law will enable the representatives of the people in parliament to forbid the push to introduce homosexuality in our country at once," Kaluma said, calling Kenya's courts "the weakest link in the battle for family values across the world."

"Our success before the courts will not be easy, but the battle must be fought because it is the right thing to do to save humanity," he continued.

Dr. Jackson Koski, a member of parliament, agreed. Speaking before demonstrators in the East African country's port city of Mombasa September 13, he said, "The legalization of the LGBTQ movement is a foreign aspect which is not welcome within our territories," reported Reuters.

LGBTQ activists said the climate is fearful.

"People ... feel like they have the right to attack you," Kevin Mwachiro, an LGBTQ activist, told Reuters. Kenya's LGBTQ community is being challenged right now more than he's experienced in his 15 years as an activist, he said. "They feel that they have that right because of what has been said in the press, what the government has said," he explained.

According to Reuters, NGLHRC reported that since the court's February ruling, the organization recorded a surge in threats against the community. As of April, calls from community members reporting assaults, threats, and discrimination spiked from 78 in January to 117 in February and 367 in March.

The commission also recorded a rise in community members being discriminated against by employers, landlords, and health care providers.

Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, or [email protected]

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