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A pro-LGBTIQ court ruling in Kenya sparks hope despite a fierce backlash

A court ruling granting LGBTIQ groups equal status has been condemned by the president and fiercely debated online

Rael Ombuor.jpg
Rael Ombuor
9 March 2023, 12.05pm

Demonstrators are seen marching with an LGBTQ flag during a protest in Nairobi organised by The Queer Republic in 2022| Getty Images

At an upmarket coffee shop in Kenya’s capital, Nairobi, in late February, I met with three young businessmen to discuss a recent Supreme Court ruling in favour of an LGBTIQ+ rights organisation.

All three had come to identify as gay when they were at school together years ago. Now, as they analysed their social media feeds, they concluded that few people were celebrating the court’s decision. Most were outraged by it.

They discussed the possibility of homophobic attacks, and the man who lived in an uptown neighbourhood offered his home as sanctuary to the others if they felt unsafe.

“We are grateful for those who came before us, for the fight they put up. This is a victory that we celebrate,” one of the men, Collin, said. “But this fight is definitely far from over, you can see from the reactions that it will be a rough journey to freedom and acceptance,” added another, Martin.

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Days earlier, on 24 February, the Supreme Court ruled that the National Gay & Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a non-governmental organisation (NGO), saying it is unconstitutional to deny registration on the basis of the applicants’ sexual orientation. The ruling aligned with previous judgments from the High Court and the Court of Appeal.

The case dates from 2013, when NGLHRC co-founder and former executive director Eric Gitari challenged the country’s NGOs Coordination Board, which had refused to register the organisation because its name contained the words ‘gay’ and ‘lesbian’.

“The hidden message there was: closet yourself, deny yourself, and we will be OK with it – and we refused that,” Gitari told openDemocracy

I’m too scared to leave my house – everyone knows that I am gay

The Supreme Court ruling stated: “Just like everyone else, [LGBTIQ+ people] have a right to freedom of association which includes the right to form an association of any kind.”

It continued: “It should be noted however that all persons, whether heterosexual, lesbian, gay, intersex or otherwise, will be subject to sanctions if they contravene existing laws, including Sections 162, 163 and 165 of the Penal Code.”

These colonial-era laws, introduced by the British, criminalise gay sex with punishments of up to 14 years in prison. Rights groups, including NGLHRC, have challenged them in court, but the High Court upheld the legislation in 2019, claiming it does not violate the rights of LGBTIQ Kenyans. The case is currently at the Court of Appeal.

Njeri Gateru, the executive director of NGLHRC told openDemocracy that the judgement affirmed the protections of Kenya’s constitution. “It’s quite encouraging to see that the highest court of the land stood by a decision that aims to protect vulnerable minorities even when those decisions don't seem to be the most popular ones,” she said.

Backlash against Supreme Court ruling

'Homosexuality' and ‘LGBTQ’ were still trending on Twitter in Kenya four days after the judgement. Online debates ensued, with news stories about the decision garnering thousands of comments on social media, many of which mocked LGBTIQ people.

The opposition to NGLHRC’s victory also came from the highest offices in the land. President William Ruto said that while he respected the court's verdict, homosexuality remained “unacceptable” in Kenya, while deputy president Rigathi Gachagua called homosexuality “satanic”.

Religious organisations also condemned the decision, with Nairobi’s Jamia Mosque saying the judgement “would have detrimental effects on religious, cultural and family traditions”. Christ Is The Answer Ministries Kenya, one of the country’s largest evangelical churches, called on Kenyans “of moral integrity to reject, resist and oppose the Supreme Court ruling” as it would “erode our societal norms and morals”.

Kenya’s attorney general said the government would challenge the ruling, though he did not explain how. Supreme Court decisions can be altered only through amendments to the Kenyan constitution, which would involve a referendum – which religious leaders have announced they will push for.

‘We were non-existent’

The idea to form a national LGBTIQ human rights group came in 2010, Gitari told openDemocracy, when he was working at the Kenya Human Rights Commission and was involved in the first nationwide consultation of LGBTIQ people and data collection on the human rights convention on queer people. The result was a report published in 2011 called 'The Outlawed Amongst Us' in which its contents made the initial arguments for the registration of NGLHRC.

This report is the first to review human rights conditions of LGBTQ Kenyans.

Two years later, as Gitari and his friends were mulling over names for their planned organisation, he was arrested while holding a party. He thinks the police were called by someone who disapproves of gay people.

Before Gitari was released from custody, one of his friends published a magazine editorial announcing the creation of a new organisation, the National Gay and Lesbian Human Rights Commission, and that one of its founders had been arrested. Gitari said: “He picked that name and published it because he knew there would be no going back.”

This fight is far from over, you can see from the reactions that it will be a rough journey to freedom and acceptance

Gitari said the group registered as a community-based organisation (CBO) – a non-profit local group subject to less scrutiny than NGOs – under a different name so as not to be detected by government officials.

This meant the group didn’t have any documents bearing its actual name, Gitari said, “so we could not enter into a lease agreement with anyone, we could not get into contracts with donors, under that name.

“We were non-existent, illegally and formally, and have been existing informally to the present day,” he added.

‘We had to remove the pride flags’

Kate* is the founder of an organisation that advocates for the legal, health and socio-economic rights of lesbian, bisexual and queer Kenyan women.

As with NGLHRC, Kate’s organisation, which openDemocracy is not naming for members’ protection, had to be registered as a CBO under a name that would not be suspected of being an LGBTIQ organisation, having been twice denied registration.

Applauding the Supreme Court decision, Kate said: “Just being able to register as a queer organisation will enable us to push for our rights, which we have long been denied, in a systematic proper way.”

But the backlash against the ruling has been frightening, she said. “I’m too scared to leave my house – everyone knows that I am gay. There is tension in the country and so much hate at the moment that has been building up over the years.”

In recent days, as homophobic rhetoric escalated nationwide, Kate has “had to remove the pride flags in the office” and is planning to leave town “until things cool down”.

She explained: “In WhatsApp groups, they are now mentioning people’s names and saying ‘this or that person is recruiting lesbians’. It is not safe for us.”

Kenya’s LGBTIQ community has experienced numerous attacks and deaths in recent years, which activists blame on the country’s culture, religion and homophobic laws.

The latest documented death is that of Edwin Kiprotich Chiloba, a gay rights activist, fashion designer and model who was found dead in the Rift Valley region on 3 January. He had been strangled and his body stuffed in a metal box.

Last April, nonbinary lesbian Sheila Lumumba was found raped and murdered in their room in Nyeri county, central Kenya, and weeks later, Rose Mbesa, an intersex person, was also raped and killed in Trans Nzoia county in the west of the country. In 2021, transgender woman Erica Chandra was murdered in Nairobi, while Joash Mosoti, a gay man, was tortured and strangled to death in Mombasa.

*Not her real name

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