Recent Mombasa High Court Ruling And The Forced Expansion Of LGBT Rights In The Country

Justice Olga Sewe sitting in the High Court in Mombasa last week issued temporary orders restricting the activities of the anti-lgbt movement, who have been accused of inciting the public against the lgbt community. The Court Order also restricts any anti-lgbt activist from demanding the closure of organizations serving the lgbt community in the country.

Back in 2012, National Gay and Lesbian Human Rights Commission Executive Director Eric Gitari wanted to register his organization with Kenya’s NGO (Non Governmental Organization) coordinating board. The board rejected his application explaining that the proposed NGO was offensive to public policy and conflicted with Sections 162, 163 and 165 of the penal code, which outlaws homosexuality in the country.

Mr Gitari then challenged the NGO Board’s decision by initiating a court process that ended up with a landmark Supreme Court decision delivered in February 2023. In that ruling, the Supreme Court declared that the lgbt community has a right of association, based on the Court’s understanding of the word “sex” in article 27(4) of the Constitution.

Article 27(4) of the Constitutions says the following:
“The State shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion conscience, belief, culture, dress, language or birth.”

A normal interpretation of the word “sex” in that clause would mean biological sex (basically whether a person is male or female). This would also be the understanding of the millions of Kenyans who approved and voted for the current Constitution. Kenya is a conservative country, and as such, would never have passed a Constitution that basically legalized homosexuality.

Three of the Five Justices who made the ruling argued that the word “sex” in that clause should also mean “sexual orientation”, effectively enshrining the legality of homosexuality in the Constitution.

At the time, the Supreme Court was careful to state that they had not made homosexuality legal in the country, but had only allowed for the right of association to a particular group. However, as we have argued before, such a decision by the highest court in the land would have significant ramifications. By interpreting that clause in the way they did, they set a precedent that would be followed by the lower courts and other branches of government.

This is what we are witnessing now with this Mombasa High Court ruling. The temporary orders were issued in a case where a petition has been brought by the Centre for Minority Rights and Strategic Litigation (CMRSL) and other advocates for lgbt persons, seeking a declaration by the Court that lgbt persons are entitled for particular protection under the Constitution. This is despite homosexual activities being illegal in the country.

An anti-lgbt movement rose up and organised rallies to protest the ruling made by the Supreme Court last year. The pro-lgbt petitioners want the Court to bar the protesters from assembling, demonstrating, picketing and presenting petitions to public authorities, saying that this right to assemble and picket is not available to them because they are in breach of the Constitution.

This argument that the anti-lgbt movement has no right to demonstrate against the proliferation of an ideology that is against what a majority of Kenyans believe, is based on that simple definition of “sex” given by the Supreme Court. The pro-lgbt group believe that they are a constitutionally protected group because of the Supreme Court Justices interpretation of “sex” in article 27(4) of the Constitution.

This is the slippery slope that we feel will eventually lead to the complete legalization of homosexual activities in the country, and as we stated before, groups such as the National Gay and Lesbian Human Rights Commission (NGLHRC) exist to do exactly that. This would be enforcing a culture change in the country that isn’t supported by a majority of the people.

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