From Rejection to Recognition: The Landmark Victory of NGLHRC in Kenya

 The National Gay and Lesbian Human Rights Commission (NGLHRC) in Kenya won a decade-long battle as they were granted the right to register under their current name. The ruling is much bigger than just the name, as it can be seen as a shield protecting constitutional liberties and that no human being in Kenya should be discriminated against simply because of sexual orientation and gender identity. We talked with NGLHRC’s Program Officer Masafu Okwara, a human rights lawyer, about the legal process and the Commission’s work that went into achieving the much-needed legal reform and recognition for LGBTIQ +Kenyans.

 

 

 

 

It all started with a wish to establish an organization to bridge the gap in access to legal services and fight against the injustices faced by Kenyans due to their real or perceived sexual orientation or gender identity. The Commission was borne out of conversations. Conversations activists had among themselves and conversations the activists had with members of the community all over the country. These conversations confirmed what these activists had always suspected LGBTIQ+ People could not access legal redress, and there were no systems even to pursue legal redress. This is how Masafu describes the beginning of the journey NGLHRC started over 10 years ago, when NGLHRC founders wanted to register an NGO.

” To commence registration of The National Gay & Lesbian Human Rights Commission,the first requirement was to reserve a name.  Our founders chose different name iterations with Gay & Lesbian on the basis that no Kenyan should face any form of discrimination simply based on Sexual orientation and gender identity. It was really important to reserve the name in the true representation of queerness. Because it was crucial to disrupt the status quo where human rights violations against LGBTIQ+ people were justified and to pursue constitutional liberties for LGBTIQ+ residents of Kenya.”, Masafu tells us about the start of the journey.

It was really important to reserve the name in the true representation of queerness. Because it was crucial to disrupt the status quo where human rights violations against LGBTIQ+ people were justified and to pursue constitutional liberties for LGBTIQ+ residents of Kenya.

The registration was rejected on unlawful, biased, moral and cultural grounds, because the name contained the words gay and lesbian. The decision relied on the colonial era law that penalizes homosexual activity. But this decision did not have legal grounds as it was against the constitutional rights to rights limitation under the Constitution of Kenya 2010

” The constitution does not allow rights limitation just on the basis of public morality. For you to limit these constitutional liberties you should follow what is written in the law and this is not the case”, Masafu says.

So, what seemed to be a simple process of registering a name, turned out to be a 10-year long legal battle for the right to associate.

” It was needed that queer Kenyans asserted the right to freedom of association and thus the move to court was initiated.”

In 2015 the Constitutional division of the High Court ruled in favor of the NGLHRC and this decision was later confirmed in the ruling of the Court of Appeal in 2019, after the Kenyan Government issued their appeal to undermine the ruling of the High Court in 2015.

The decision was then brought to the Supreme Court of Kenya that ruled in February of 2023 in a landmark judgment allowing the NGLHRC to register with ‘gay’ and ‘lesbian’ in its title. The last hurdle was a frivolous appeal made by a member of Parliament who had never been party to the Petition. But this was dismissed in September 2023.  A decade-long legal battle was finally finished. The court emphasized the unwavering principles of freedom, association, and assembly under Article 36 of the Kenyan Constitution.   in the ruling. This ruling reaffirmed Kenya’s constitutional promises to equality and non-discrimination. And thus, the ruling marked a huge victory and sets the path for rights protection for the LGBTIQ+ residents of Kenya.

Strength in the community

The everyday work, protecting the human rights of LGBTIQ+ people, NGLHRC set out to do when starting the registration process did not end while the battle for the right to register was going on.

” The sad bit is that NGLHRC did not have the luxury to pause the work that needed to be done just because the case was pending and ongoing in Court. NGLHRC needed to strategize to make sure that the LGBTIQ+ residents of Kenya were safeguarded from all forms of discrimination or violence. So, the Commission’s work continued”, Masafu explains.

The inaction of the state puts a lot of pressure on queer activists. They are the ones battling against violence and misinformation. The continuous human rights violations are in themselves a challenge. NGLHRC shows that despite these challenges the knowledge of being on the right side protecting human rights for all, regardless of sexual orientation or gender identity, was an important resource.

Sadly, some of the mainstream human rights NGOs in Kenya did not support NGLHRC in this battle. They were not holding the line to guarantee the constitutional rights of all Kenyans. There was a lot of hesitancy to show direct support. One reason is the homo-, trans and biphobic norms upheld by society. Religion is also a conveyor belt for hate mobilization against the LGBTIQ+ community in Kenya.

Alongside that there is huge strength also within the LGBTIQ+ community that made NGLHRC push forward during the struggle.

” What continues to give us hope are our LGBTIQ+ siblings. Defending against injustice and seeking legal redress while championing for legal reform. This was a fight that the commission could not afford to stop. The solidarity within the community, the course to champion against the violence against us needed to stop, and that keeps us going”, Masafu says. This was also shown within the number of cases recorded at the legal aid centers. The cycle of violence against Queer bodies just needed to stop.

” Queer joy, solidarity and community, most importantly”, Masafu sums up the reasons for pushing forward. And the end result is a victory for the community. The landmark decision also shows that there is no space in Kenya for discrimination based on sexual orientation or gender identity.

Geared up with queer joy

A lot of work has gone into the safeguarding of the victories NGLHRC fought hard for – victories that safeguard the rights of LGBTIQ+ people in Kenya. After the Supreme Court’s decision there was a backlash. Violence and hate speech against LGBTIQ+ people have risen enormously. The Supreme Court decision has been branded as a marriage equality judgment, which it is not. It only addressed the issue of freedom of association. This of course has a lot to do with equality and non-discrimination, but not with marriage equality.

The cases of human rights violations against queer, trans or intersex Kenyans increased exponentially. The Commission and other Queer Led Organizations during this period recorded what bordered on mob violence, forced evictions, robbery, blackmail and sexual violence among others. The response required a lot of strategic planning from NGLHRC. This meant also that the activists were tired and burnt-out and strained on mental health issues.

” The trauma witnessing all the hate speech and anti queer g coming from political and religious leaders after and during the legal battle was really difficult”, Masafu says. This was also really resource intensive., The misinformation also undermines the work that has been done by the very brave queer human rights defenders. NGLHRC also received direct attacks and unlawful trespass at their legal aid center.

Luckily NGLHRC has been able to form strategic alliances for example with human rights activists within the feminist movement. NGLHRC also has a good connection with a state officer in the Kenya National Commission on Human Rights, who fights for the rights of LGBTIQ+ people.

During the interview one thing becomes clear. The LGBTIQ+ community is ready to continue the fight. Despite the challenges ahead, backed with the recent landmark decision by the Supreme Court, the LGBTIQ+ community is ready to stand up for their rights.

” The LGBTIQ+ community and activists are only geared up to a path. That is the path to equality and non-discrimination. There is no backing down, moving back or settling. We exist, continue to exist and have always existed. And we are deserving of equality and non-discrimination. This is non-negotiable”, Masafu states, when asked about the future. She continues:

” The future looks bright however difficult it may be. The Supreme Court has pronounced itself, when it comes to equality and non-discrimination. No amount of hate speech and misinformation can take it away.”

Masafu also wants to share the same message in Finland.

” I hope that during this Pride Month you bask in a lot of queer joy. And that you are affirmed and loved. You are incredible humans who continue to make this world a very beautiful place. Queer joy is resistance in itself.”

A message KIOS is happy to share during this Pride Month.