On the 24th of February 2023, the Supreme Court of Kenya affirmed two decisions of the High Court and the Court of Appeal to allow for the registration of the National Gay and Lesbian Human Rights Commission as a non-governmental organization (NGO). The Supreme Court agreed with the reasoning of the High Court that, just like everyone else, the LGBTIQ+ community has a right to freedom of association which includes the right to form an association of any kind. The Court agreed that it would be discriminatory and unconstitutional to limit the right to associate, through denial of registration of an association, purely based on sexual orientation. The Supreme Court affirmed that the non-discrimination clause under Article 27 of the Constitution must be read broadly, and that it prohibits discrimination on the grounds of sexual orientation.
This decision not only marks the end of a ten-year legal battle between the National Gay &Lesbian Human Rights Commission and the Non-Governmental Organizations Board, but also paves way for a stronger rights-based HIV response in Kenya. The Global Commission on HIV and the Law has recommended that to ensure an effective, sustainable response to HIV that is consistent with human rights obligations, countries must remove legal, regulatory and administrative barriers to the formation of community organizations by or for gay men, lesbians and/or bisexual people. This is in addition to reforming approach towards sexual diversity. The decision will also advance UNAIDS Global Strategy to use an inequalities lens to close the gaps that are preventing progress towards ending HIV.
On the backdrop of heightened stigma, discrimination, violence, and poor access to health services for the LGBTIQ+, this decision will contribute to enhanced access to health service and impact positively on realization of the right to health for the community.
KELIN welcomes the Supreme Court ruling noting that the recognition of the right to freedom of association means the LGBTIQ+ community would no longer have barriers in registration of associations aimed at implementing health and related programmes and interventions in line with the Ministry of Health’s Kenya AIDS Strategic Framework. The HIV response in Kenya would in turn gain positive outcomes.
Congratulations to the NGLHRC and the broader LGBTQ+ Community for the victory.
Link to the Supreme Court ruling.
