The Supreme Court of Kenya (SCORK) upheld its earlier decision Tuesday that the LGBTQIA+ community has the freedom to associate, which extends to the formation of associations.
This case began when an application was made to the court by George Kaluma, an advocate of the High Court of Kenya, seeking the review and setting aside of a judgment delivered February 24th on whether refusal by the NGO coordination Board to register the National Gay and Lesbian Human Rights Commission (NGLHRC) as an organization was discriminatory and thus unconstitutional.
The court dismissed the application on two grounds. First, the applicant was not a party in the previous matter, and, second, the threshold for reviewing a matter as stipulated in Section 21A of the Supreme Court Act of Kenya had not been met.
The court stated:
Section 21A of the Supreme Court Act provides for the circumstances pursuant to which this court may review its own decision on an application filed by “a party.” The court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties.
The court went on to hold:
Both the Act and stated case law stipulate the circumstances under which this court may review its decisions, either on its own motion or upon application by a party. The applicant has not demonstrated how this matter conforms to the specific parameters enumerated under Section 21 A of the Supreme Court Act…neither has he demonstrated to our satisfaction that the impugned judgment was obtained by fraud or deceit, is a nullity or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto. In our view, the application is a disguised appeal from this court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law.
Commenting on the ruling, George Kaluma stated, “In dismissing my application, the court disregarded the substance/merits of the application and proceeded on the technicality that I was not a party to the earlier proceedings and therefore could not apply or be heard on the substance of the matter.” Religious organizations have also expressed their disapproval of the ruling, claiming that the Supreme Court judges have “gone against God” by reaffirming their decision and allowing registration of LGBTQIA+ associations in Kenya.
NGLHRC celebrated the ruling, stating, “Today’s decision is not just a victory for NGLHRC or the LGBTIQ+ community but for the enduring principles of freedom of association and assembly encapsulated in Article 36 of the Kenyan Constitution thirteen years after its promulgation.”
Kenya has been embroiled in conflict over LGBTQIA+ rights for some time, with the legislature considering a bill to make homosexuality punishable by ten years in prison and “aggravated” homosexuality punishable by death. Currently, homosexuality is penalized under section 162 of the Kenyan penal code.