PRESS STATEMENT ON THE SUPREME COURT JUDGEMENT ON THE FREEDOM OF ASSOCIATION OF LGBTQ+

March 6th 2023

Published on the 28th of February 2023

The undersigned institutions appreciate the tremendous human rights milestone arising from Petition No. 16 of 2019 of the Supreme Court of Kenya delivered on 24th February 2023.

We recognize and applaud the efforts of the Judiciary to advance the constitutional and human rights principles guaranteed and that are inherent in our fundamental rights and freedom. We commend the Judiciary for its unwavering commitment to upholding the principles of the Constitution of Kenya, which guarantee freedom of association under Article 33 and Freedom of Association under Article 36, and the right to equal protection under the law for all persons under Article 27 of the Constitution, aptly illustrated in the wording of the decision: " As such, we agree with the reasoning of the High Court that just like everyone else, LGBTQ have a right to freedom of association which includes the right to form an association of any kind."

The judgement has demonstrated the great strides that Kenya has taken to promote the rule of law, democracy and human rights. We are cognizant of the backlash and attacks on the Judges of the Supreme Court have faced concerning the decision. We condemn these acts and urge members of the public to respect the decisional independence of the Judiciary.

Even as we celebrate the remarkable decision and milestone in advancing human rights, we are alarmed by the reactions, misinformation and disinformation being spread online, statements by public officials, religious organizations and popular artists/celebrities, bloggers/vloggers among others regarding the ruling from the Supreme Court of Kenya. The impact created by these reactions continues to affect the LGBTQ+ Communities disproportionately.

The Constitution of Kenya expressly prohibits incitement to violence, discrimination and vilification of others or incitement to cause harm. The African Commission on Human and Peoples Rights (ACHPR, in Resolution 275, strongly urges States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims. Moreover, Human Rights Committee in 2021 tasked Kenya to adopt comprehensive legislation prohibiting discrimination, including multiple, direct and indirect discrimination, in all spheres, in both the public and the private sectors, on all the grounds prohibited under the Covenant, including sex, sexual orientation, gender identity, religion, disability, albinism, socioeconomic status, HIV/AIDS status, ethnic and political affiliation or other status.

In the last few days, human rights organisations have noted with concern, increasing incidents of malicious online and offline comments, profiling, and public demonstrations against persons who identify as inter-sex, gay, lesbian, or non-binary. The personal details of LGBTQ+ citizens and their family members are being openly shared and intimidated online, violating the right to privacy and human dignity.

Citizens are reporting confrontations with landlords and employers. There are increasing requests for evacuation, relocation, and psychotherapy while legal and health services and offices are having to close due to safety concerns. Organisations have been responding to no less than 117 homophobic cases in the last month.

We condemn any form of parochial responses that entrench discriminatory actions directed towards LGBTQ+ communities in Kenya regardless of their real or perceived sexual orientation and gender identity.

We, therefore, call on the following agencies and the public to do the following;

  • Media houses should call for more representation of diverse and balanced perspectives on the supreme court judgement and issues affecting the LGBTQ community;
  • Urge all Kenyans to exercise their right to seek information from diverse and credible sources
  • The Ministry of Interior and Coordination under the relevant institutions to investigate and take action against any individuals and groups inciting and spreading violence against LGBTIQ+ individuals and the community at large
  • The National Cohesion and Integration Commission (NCIC) to monitor hate and sternly and swiftly act against perpetrators of online violence
  • Members of Parliament and Religious Leaders should be cognisant of their duty under the law to uphold respect for life, and human dignity and create an inclusive and tolerant environment for all.

We support the Supreme Court decision as it promotes and advances inclusivity being one of the principles under Article 10 of the Constitution of Kenya. We advise the LGBTQ+ community in Kenya to seek and report any injustices to security agencies and the Kenya National Commission on Human Rights (KNCHR).

We implore all Kenyans to exercise tolerance that allows for the robust exchange of divergent views. They should understand that indirect or direct violence against the LGBTQ+ community violates Article 29 that no citizen should be subject to "any form of violence from either public or private sources" and that all Kenyans are entitled to equal protection of the law.

Finally, we reiterate that human rights are interdependent and indivisible and all lives deserve to be protected. We call upon all to be minded that Kenya is a signatory to the Universal Declaration on Human Rights which states that all persons are born equal and free from discrimination” and is further buttressed in Article 27 of the Constitution of Kenya 2010 which states that “ ** Every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.”**

Thank you.

Signed by the following Civil Society Organizations

  1. The Kenyan Section of the International Commission of Jurists (ICJ Kenya)
  2. Katiba Institute
  3. The Kenya Human Rights Commission (KHRC)
  4. The National Gay and Lesbian Human Rights Commission (NGLHRC)
  5. The Institute of Social Accountability. (TISA)
  6. Amnesty International Kenya
  7. The Eagles for Life Kenya (TEFL-K)
  8. galck+, formerly the Gay and Lesbian Coalition of Kenya
  9. Initiative For Equality And Non-Discrimination (INEND)
  10. Bold Network Africa
  11. American Jewish World Service
  12. Jinsiangu
  13. Coalition for Grassroots Human Rights Defenders-Kenya (CGHRD-K)

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