The Lesbian Gay Bisexual and Transgender (LGBT) community can now go ahead and register their association.
This is after the Court of Appeal affirmed the High Court decision that directed the Non-Governmental Organizations Coordination Board register the LGBT as an association.
Court of Appeal judges led by Justice Philip Waki, Asike Makhandia and Martha Koome in their ruling said that all human beings should not be denied their fundamental rights because of how they choose to live their lives.
The three judges said that in a society as diverse as Kenya, there is need for tolerance and in any democratic society there will always be a marginalized group.
In dismissing the appeal by the NGO Board for lack of merit, the court noted that LGBT community has a right to freedom of association and there is nothing unlawful and criminal about the objectives of the proposed NGO.
However two judges, Daniel Musinga and Roselyn Nambuye had a different view and agreed with the Board decision to decline to register the community.
According to the judges, the High Court had no jurisdiction to entertain the petition adding that if registered, the community will destroy the cultural values of Kenyans, and must therefore not be allowed.
In 2015 the High Court ruled in favour of the LGBT community, arguing that they had the same rights as the everyone else to form an organisation for mutual support.
This decision was contested at the appellate court by the Non-Governmental Organizations Coordination Board.
The Board rejected their application to register the the association saying that the name of the organization which had been submitted for registration was unacceptable and could not be registered because Kenya’s Penal Code criminalises gay and lesbian unions and relationships.
In the main case filed by Eric Gitari, it sought to have the National Gay and Lesbian Human Rights Commission registered under the Non-Governmental Organizations Coordination Act, claiming that it is within the rights of the gay community.
After the Court of Appeal decision, the National Gay and Lesbian Rights Commission released a press release saying that the ruling only brings inclusivity and sets a positive precedent for other rights organization in Kenya and around Africa.
The group says that it has struggled with registration since it was founded in 2012.
“Big win for freedom of association and a vibrant civic space,” tweeted the Kenya Human Rights Commission (KHRC) after the ruling.