Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae)
NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019)  KESC 17 (KLR) (Constitutional and Human Rights) (24 February 2023) (Judgment) (with dissent - MK Ibrahim & W Ouko, SCJJ)
Refusal to register an organization of persons within the LGBTQI community amounts to violation of the freedom of association and freedom from discrimination
In April 2012, the 1st respondent applied on three separate occasions to the Non-Governmental Organizations Co-ordination Board (the appellant) for the reservation of one of the six different variations of names submitted for a proposed non-governmental organization (NGO) to address the violence and human rights abuses suffered by the lesbian, gay, bisexual, transgender, queer or questioning (LGBTQI) community in Kenya. The proposed names were, National Gay and Lesbian Human Rights Commission, National Coalition of Gays and Lesbians in Kenya, National Gay and Lesbian Human Rights Association, Gay and Lesbian Human Rights Council, Gay and Lesbian Human Rights Observancy and Gay and Lesbian Human Rights Organization.
The appellant rejected the 1st respondents application and informed him that the proposed names and the objects of the proposed NGO were offensive to public policy and stood in conflict with sections 162, 163 and 165 of the Penal Code, which outlawed homosexual liaisons. Aggrieved, the 1st respondent challenged the appellants decision of rejecting his application at the High Court. The High Court in determining the substantive question of violations of the respondents constitutional rights found that the respondents right of association guaranteed by article 36 of the Constitution of Kenya, 2010 (Constitution) was violated by the failure of the appellant to accord just and fair treatment of gay and lesbian persons living in Kenya seeking registration of an association of their choice.
Aggrieved, the appellant filed an appeal at the Court of Appeal. The Court of Appeal held that the appeal before it raised only two questions: whether the petition filed before the High Court was competent on account of jurisdiction based on the doctrine of exhaustion of remedies and whether, in rejecting the application for reservation of a name, the appellant breached article 36 of the Constitution. The Court of Appeal held that section 19 of the Non-Governmental Organizations Co-ordination Act (NGO Co-ordination Act) on appeals did not apply to the circumstances of the case and consequently, the High Court had the requisite jurisdiction to entertain the petition.
The majority of the Court of Appeal upheld the High Courts decision, and found, on the second question that the 1st respondents rights were violated by the appellants failure to register the proposed organization. Further aggrieved, the appellant filed the instant appeal.
- Whether the refusal to register an organization of persons who fell within the lesbian, gay, bisexual, transgender, queer or questioning community violated their freedom of association.
- Whether it was unconstitutional to limit the right to associate through denial of registration of an association on the basis of sexual orientation?
- Whether refusal to reserve a name of an intended non-governmental organization on the ground that the Penal Code criminalized gay and lesbian liaisons amounted to discrimination.
- Whether the refusal to allow the reservations of names which included the terms gays and lesbians was unreasonable, irrational or illegitimate?
- Whether the right to form, join or participate in the activities of an association of any kind in article 36 of the Constitution included associations whose activities were contrary to the law.
- Whether the use of the words any person who has carnal knowledge of any person against the order of nature in section 162 of the Penal Code included female same-sex relationships as unnatural.
- Whether the refusal to approve the reservation of names of a proposed non-governmental organization was subject to the dispute resolution mechanism under section 19 of the Non-Governmental Organizations Coordination Act on appeals.
- What were the grounds in which an administrative decision could be challenged and struck down by courts.
Relevant provisions of the law
Constitution of Kenya, 2010
Article 27 -Equality and freedom from discrimination
(4) 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, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Article 36 - Freedom of association
(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that
(a) registration may not be withheld or withdrawn unreasonably; and
(b) there shall be a right to have a fair hearing before a registration is cancelled.
Non-Governmental Organizations Co-ordination Act, 1990
Section 19 - Appeals
(1) Any organization which is aggrieved by decision of the Board made under this Part may, within sixty days from the date of the decision, appeal to the Minister.
(2) On request from the Minister, the Council shall provide written comments on any matter over which an appeal has been submitted to the Minister under this section.
(3) The Minister shall issue a decision on the appeal within thirty days from the date of such an appeal.
(3A) Any organization aggrieved by the decision of the Minister may, within, twenty-eight days of receiving the written decision of the Minister, appeal to the High Court against that decision and in the case of such appeal
(a) the High Court may give such direction and orders as it deems fit; and
(b) the decision of the High Court shall be final.
(4) If the Council is satisfied that the organization has ceased to exist, its recommendation to the Board shall include suggestions of how the assets and liabilities of the organization should be distributed and the reasons thereon.
Penal Code, Cap 63
Sections 162 - Unnatural offences
Any person who
(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature,
is guilty of a felony and is liable to imprisonment for fourteen years:
Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if
(i) the offence was committed without the consent of the person who was carnally known; or
(ii) the offence was committed with that persons consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act. [Act No. 5 of 2003, s. 32.]
Section 163 - Attempt to commit unnatural offences
Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.
Section 165 - Indecent practices between males
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
Non-Governmental Organizations Coordination Regulations, 1992
Regulation 8 - Approval of names
(1) An applicant for the registration of any proposed organization shall prior to such application seek from the Director approval of the name in which the organization is to be registered.
(2) The application for approval under Paragraph (1) shall be in Form 2 set out in the Schedule and accompanied by the fee specified in regulation 33.
(3) The Director shall, on receipt of an application and payment of the fee specified in regulation 33, cause a search to be made in the index of the registered Organizations kept at the documentation centre and shall notify the applicant either that
(a) such name is approved as desirable; or
(b) such name is not approved on the grounds that
(i) it is identical to or substantially similar to or is so formulated as to bring confusion with the name of a registered body or Organization existing under any law; or
(ii) such name is in the opinion of the Director repugnant to or inconsistent with any law or is otherwise undesirable.
(4) A name which has been approved under paragraph (3)(a) shall be entered in the register of reserved names on behalf of the applicant for a period of thirty days or such longer period, not exceeding sixty days, as the Director may allow and such period shall commence from the date of notification of such approval to the applicant.
- The appeal was filed as of right pursuant to article 163(4)(a) of the Constitution. From a perusal of the judgments of the superior courts, both courts interrogated the decisions of the Executive Director of the appellant (the Director) in view of article 36 and 27 of the Constitution. The instant matter was properly before the court.
- The instant matter was not about the legalization or decriminalization of LBGTQI or the morality of same-sex marriage but revolved around the question of whether refusal to register an organization of persons who fell within the LGBTQI contravened the fundamental rights and freedoms of association guaranteed in the Constitution and whether the rights to freedom of association and freedom from discrimination of those persons seeking to be registered were infringed upon.
- According to article 159(1) of the Constitution, judicial authority was derived from the people and vested in, and should be exercised by, the courts and tribunals established by or under the Constitution. In that regard, the Constitution encouraged use of alternative means of dispute resolution mechanism.
- Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it was only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it.
- The administrative action concerned was the refusal to approve the 1st respondents name. The relevant statute, the NGO Coordination Act, did not provide for a dispute resolution mechanism for the administrative action concerned. Unlike the Companies Act, the NGO Coordination Act did not anticipate that the reservation of names was an administrative action which would attract the dispute resolution mechanism provided for under section 19 of the NGO Coordination Act. In other words, there were no substantive provisions on approval of names under the NGO Coordination Act. In addition, from the provisions of Regulation 8 of the NGO Regulations, there were no administrative mechanisms to which the 1st respondent ought to have exhausted, following the directors decision under that regulation.
- Neither the NGO Coordination Act nor the NGO Coordination Regulations provided for any internal dispute resolution mechanism for a party aggrieved by the decision made by the director when exercising its mandate under Regulation 8 of the NGO Regulations. An Act of Parliament had to clearly provide for an internal dispute resolution mechanism before an aggrieved party could be bound by such a mechanism.
- The petition before the High Court concerned interpretation and application of the Constitution, a jurisdiction bestowed upon that court. The minister, therefore, did not have the jurisdiction to entertain issues such as the constitutionality of the decision taken by the Director and the appellant. Therefore, the suit before the High Court was proper. There was no internal dispute resolution mechanism under NGO Coordination Act and the NGO Coordination Regulations, 1992 to challenge the impugned decision.
- The right to freedom of association was recognized in international and regional human rights instruments which Kenya had ratified. Article 260 of the Constitution defined a person to include a company, association, or other body of persons whether incorporated or unincorporated. A literal reading of article 36 of the Constitution was that the LGBTQI group was not excluded from the definition under article 36. Article 36(3) required that any legislation that required registration of an association of any kind should provide that registration would not be withheld or withdrawn unreasonably. The right to form an association was an inherent part of the right to freedom of association guaranteed to every person regardless of race, sex, nationality, ethnicity, language, religion, or any other status.
- The right to freedom of association could not be limited unless as provided for under the Constitution. There was no evidence placed before the 1st appellant to demonstrate that persons who professed to be LGBTQI were criminals or that it was only them who were capable of committing the offence of unnatural acts. That was a mere assumption which was not born out of evidence when indeed it was confirmed by empirical data that even heterosexuals commit such offences more often than not most callously.
- Not all rights were absolute, some rights were subject to limitation. In that context, article 36(3) of the Constitution contemplated that the right to freedom of association was subject to limitation. However, any limitation on any fundamental rights and freedom was subject to article 24 of the Constitution.
- Although sections 162, 163, and 165 of the Penal Code prohibited any person from committing acts that went against the order of nature, those sections did not distinguish between heterosexual or homosexual offenders. The sections did not limit the perpetrators of such acts to persons who were LGBTQI; indeed, the words, any person, connoted a potential offender under those sections who could very well be heterosexual, homosexual, intersex or otherwise.
- Sections 162, 163, and 165 of the Penal Code did not, pursuant to the provisions of article 24 of the Constitution, express the intention to limit LGBTQIs right to freedom of association. Likewise, the sections did not specify the nature and extent of the limitation of the freedom of association, if any. The 1st respondents intention was to register an organization to champion for the rights of LGBTIQI, and that had no correlation whatsoever with the offences articulated under sections 162, 163 and 165.
- The appellants interference to the 1st respondents right to freedom of association did not pursue any legitimate aim such as national security or public safety, the prevention of disorder or crime, the protection of health and morals and the protection of the rights and freedom of others. Therefore, the appellants limitation of the right to freedom of association was not proportionate to the aim sought.
- The Constitution required State organs, State officers and public officers to uphold national values and principles of governance such as human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalized. In addition, the Constitution, in article 21(1) provided that it was a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the bill of rights.
- Article 21(3) of the Constitution imposed an obligation on all State organs and all public officers to address the needs of vulnerable groups within society including members of minorities and marginalised communities. Given that the right to freedom of association was a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, that right was inherent in everyone irrespective of whether the views they were seeking to promote were popular or not.
- It would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants. Therefore, the appellants decision was unreasonable and unjustified. LGBTQI had a right to freedom of association which included the right to form an association of any kind. All persons, whether heterosexual, lesbian, gay, intersex or otherwise, would be subject to sanctions if they contravened existing laws, including sections 162, 163 and 165 of the Penal Code. By refusing to register the proposed NGO, the persons were convicted before they contravened the law. Such action was retrogressive. The appellant violated the 1st respondents right to freedom of association under article 36 of the Constitution.
- The use of the word sex under article 27(4) of the Constitution did not connote the act of sex per se but referred to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further, the word including under the same article was not exhaustive, but only illustrative and would also comprise freedom from discrimination based on a persons sexual orientation. Therefore, an interpretation of non-discrimination which excluded people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.
- To allow discrimination based on sexual orientation would be counter to the constitutional principles. Therefore, the appellants action of refusing to reserve the name of the 1st respondents intended NGO on the ground that sections 162, 163 and 165 of the Penal Code criminalized gay and lesbian liaisons was discriminatory in view of section 27(4) of the Constitution. The 1st respondents right not to be discriminated directly or indirectly based on their sexual orientation was violated by the appellant.