By George Barasa
In news that was broken through Facebook by Eric Gitari, Executive Director National Gay and Lesbian Human Rights Commission (LGLHRC), Kenya has made yet another groundbreaking step towards the recognition of LGBTI organisations in the country.
Eric who was clearly in a jubilatory mood posted, “We have it. Today, The constitution court has ruled in our favour and compelled the state to register the gay and lesbian human rights comm. Happy times”
The NGLHRC’s application to register was denied in 2013 because the Non-Governmental Organizations Coordination Board deemed the group’s name unacceptable
“The National Gay and Lesbian Human Rights Commission seeks to carry out basic human rights work, such as standing up for LGBT people who have been victims of violence,” said Eric Gitari. “To deny the NGLHRC the right to register is to deny them the chance to carry out this important work and violates the rights to freedom of association and non-discrimination enshrined in Kenya’s Constitution.”
The group applied to the Non-Governmental Organizations Coordination Board in order to retain its name in April 2012, in accordance with the provisions of the Non-Governmental Organizations Coordination Board Act.
With the denial of the application, the board explained that the name of the organization was unacceptable and could not be registered because Kenya’s penal code criminalizes gay and lesbian liaisons.
The law in Kenya criminalizes what they term carnal knowledge against the order of nature, commonly understood as anal sex, but no provision forbids people to be lesbian, gay or transgender or to associate in pursuit of common interests which forced the NGLHRC to challenge the refusal in court.
However in July last year, the High Court of Kenya handed down a judgment ordering the Coordination Board to register a transgender organization, Transgender Education and Advocacy (TEA).
In the case of Transgender Education and Advocacy and Others vs. NGO Coordination Board, the court ruled that, to discriminate persons and deny them freedom of association on the basis of gender or sex is clearly unconstitutional, and t the board’s actions contravened Article 27(4) of the Constitution, which prohibits direct or indirect discrimination by the government.
The stated aims of NGLHRC are to advance full participation, equality and inclusion of LGBT people in Kenya by engaging with the law, culture and politics. Without formal registration the organization’s ability to operate is compromised. It cannot enter into basic contracts such as leasing premises or open bank accounts, and its ability to raise funds is curtailed.
Under article 22 of the International Covenant on Civil and Political Rights, to which Kenya is a state party, any restrictions to the right to freedom of association must be necessary in a democratic society, and in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
Article 2 of the agreement requires countries to adhere to all the rights in the covenant without discrimination, including freedom of association.
The African Charter on Human and People’s Rights Article 27 (2) also states, “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”
“The refusal to grant legal status to an organization, on arbitrary discriminatory grounds, violates Kenya’s international obligations,” said Monica Tabengwa, LGBT rights researcher at Human Rights Watch.
In a new Human Rights Watch video, Kenyan lawyers describe how such restrictions keep them from serving some of Kenya’s most vulnerable populations.