The Supreme Court of Kenya has upheld its earlier ruling that LGBTQIA+ organizations have the freedom to form associations and that denial of their registration is unconstitutional. This reaffirmation came in response to an application for the review and annulment of the previous judgment, filed by George Kaluma, a notable advocate of the High Court of Kenya.
Kaluma requested the review of the decision handed down on February 24th, arguing that the NGO Coordination Board’s refusal to register the National Gay and Lesbian Human Rights Commission (NGLHRC) is discriminatory and goes against the Kenyan Constitution. However, his application was dismissed on two critical grounds: firstly, as he was not a party involved in the original case, and secondly, the conditions for review under Section 21A of the Supreme Court Act of Kenya had not been satisfied.
The Supreme Court of Kenya stated in its judgment:
“The court cannot entertain an application for the review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties… The applicant has not demonstrated to our satisfaction that the impugned judgment was obtained by fraud or deceit, is a nullity or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto. In our view, the application is a disguised appeal from this court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law.”
The decision has been met with mixed reactions. While the NGLHRC hailed it as a victory for the principles of freedom of association and assembly contained in the Kenyan Constitution, certain religious organizations expressed their discontent, asserting that the judges’ reaffirmation of the decision is against their religious beliefs.
It’s pertinent to mention that Kenya has been engaged in a long-standing conflict over LGBTQIA+ rights. Even though the act of homosexuality is illegal according to section 162 of the Kenyan penal code, this recent ruling sheds light on the increasing call for equality and non-discrimination based on sexual orientation. The full case documentation can be reviewed here.