Apex court to deliver verdict on LGBTQ groups registration dispute
By Nancy.Gitonga, September 8, 2023
The Supreme Court is today expected to hand down a major ruling on whether it will reverse its earlier decision compelling the government to officially register gay and lesbian lobby groups.
The ruling comes after Homa Bay Town MP George Kaluma lodged a review application at the court seeking to have the judgment delivered on February 24, 2023, overturning the government’s refusal to register the groups associated with same-sex relationships set aside.
He is aggrieved by the court’s finding that “just like everyone else, lesbian, gay, bisexual, transgender, queer (LGBTQ) persons have a right to freedom of association which includes the right to form an association of any kind”.
In a communication to Kaluma dated September 4, Supreme Court Registrar Letizia Wachira stated; “Take note that the ruling in this matter will be delivered via e-mail on Friday, September 8, 2023, at 10am before the Supreme Court of Kenya,” she said.
The contested judgment was delivered by a majority of three judges against two.
The majority judges, Philomena Mwilu, Smokin Wanjala and Njoki Ndung’u ruled in favour of the LGBTQ groups and dismissed the government’s appeal to disallow registration.
Promote illegalities
While allowing the registration of the groups, Justices Mwilu, Ndung’u and Wanjala argued that the constitution guarantees the right and freedom to associate and that it was discriminatory for NGO Coordination Board to reject the application of LGBTQ groups for registration based on sexual orientation.
The judges also noted that the government through the NGO Coordination Board had condemned members of the LGBTQ fraternity unheard by refusing to register them.
Justices William Ouko and Mohamed Ibrahim, in their dissenting opinion, noted there was no point in registering an organization that would promote illegalities.
According to Kaluma, the Supreme Court “by its judgment usurped the sovereign power of the people of Kenya and purported to amend Article 27(4) of the Constitution without reference to the people”.
“The Supreme Court insidiously usurped the legislative role and authority of Parliament as stipulated under Article 94(5) of the Constitution,” he adds.