The Kenyan judiciary and the push for LGBTQI rights

By Dennis Ngira and Brian Kuria

Recent developments in Kenya have served to bring to the limelight matters of the LGBTQI, who are often marginalised in society. Nowhere else has this been more pronounced than the Kenyan courts, where matters touching on the community, more so the place of their rights within the Constitution of Kenya 2010. The Kenyan Judiciary has been quite steadfast and progressive in protecting their rights. It has been at the forefront in attempting to either have their rights recognised within Kenyan society or push for measures to protect their rights and interests.

Various institutions in Kenya are achieving this by creating policy and legal frameworks. We have also seen the rise of organisations that play a greater role in this matter, and of note is the Initiative for Equality and Non-Discrimination (INEND). This organisation was established in 2015 in response to the need for new, expanded and diversified matters affecting sexual and gender minorities in Kenya. It is known for its strategic work with various actors in society towards issues of sexual violence and discrimination rights of sexual minorities, among others. The organisation further prides itself as the first in our Country’s history to lead a team of officially accredited LBQ organisations to observe the country’s 2022 general elections through the ‘Queering the Ballot’ project.

This article paper aims to analyse some key developments in jurisprudence touching on LGBTQI rights in Kenya and what recent developments have taken place that may be directly or indirectly linked to the judiciary’s advancement of rights in Kenya.

Petition No.  of 16 of 2019 between the NGO Co-Ordination Board and Eric Gitari and five others (Supreme Court of Kenya)

This can perhaps be seen as the most significant and synonymous decision that has directly touched on the rights of LGBTQI persons in Kenya and served to expand their rights. The crux of the case was that the 1^st Respondent had approached the NGO Co-Ordination Board seeking to register a body to advance the rights of LGBTQI in Kenya. The NGO Board declined to reserve or approve the names he desired to use, and it is on this decision, that the 1^st Respondent sued, alleging, among others, the denial of the right of association. The case snuck its way to the Supreme Court of Kenya, which, in a majority decision, ruled that the board violated the 1^st Respondent’s right to association as enshrined in the Constitution.

There are various pronouncements that the court made that will be key in determining the rights of LGBTQI persons in Kenya. Key to note was that before the court read its opinion, it was categorical that the issue before it did not point or touch on the legalisation or decriminalisation of LGBTQI or a matter touching on the morality and/or legality of same-sex marriage. It was simply a matter touching on their right of association.  Such a statement can be seen as the court attempting to preempt any negative pushback that may arise out of arguments that can be seen as leaning towards the legalisation of same-sex marriages in Kenya, which is often a hot-button issue in the conservative and religious background that is Kenya, while also clearly setting the agenda.

The court stated that Article 36 of the Constitution of Kenya gives every person the right to form an association; members of the LGBTQI community were not excluded from this definition. As such, any limitation of this right would be subject to the limitations set out in Article 24 of the Constitution of Kenya; the majority believed that this threshold had not been met. The arguments that by registration of the organisation, there would be an infringement of sections 162, 163 and 165 of the Penal Code were found to be without basis by the majority. The court stated that the organisation’s formation was to champion the rights of LGBTQI persons, not to advocate for the infringement of sections 162,163 & 165 of the Penal Code. The same sections were found to be inclusive of those not members of the LGBTQI community and, as such, could not be specifically used to deny them( LGBTQI community members) the freedom of association.

Furthermore, the Supreme Court found that the grounds of discrimination enumerated in Article 27 of the Constitution of Kenya are not exhaustive but merely illustrative. Moreover, the court stated that the definition of sex could include sexual orientation as well as sexual characteristics, and as such, members of the LGBTQI community did indeed have a right not to be discriminated against on the grounds of sex as defined by them.

Baby ‘A’ (Suing through the Mother E A) & another v Attorney General & 6 others [2014] eKLR

The baby, in this matter, had been born with both male and female genitalia present. Consequently, a designation of ‘?’ was entered on the birth notification slip where there ought to be an indication of gender.  This was because the designation by law could either be male or female. As the child’s sexual characteristics were atypical, there arose some confusion as to what sex mark should be present; consequently, the ‘?’ mark was entered. The mother thereafter sued, arguing that there was an infringement of the rights of the child to dignity, as well as discrimination against the minor.

In the matter, the court was categorical in stating that Baby A, as well as other intersexual persons, had their rights enshrined in the Constitution of Kenya and, as such, were also subject to its protection. The court was, however, hesitant to create a third gender identity in law as it deemed such an action to be a usurpation of the legislative mandate and role of Parliament. It suggested that the legislative arm of the government should take such a step. However, the court did direct that the Government ought to come up with a framework to cater for the rights of intersex children, as well as collect data and information about them.

It should be noted that as a direct consequence of this decision, as well as the one in the RM case, the Government in 2017 created the Intersex Taskforce in Kenya, which was mandated to, among others, try to find the spread of intersex persons in Kenya, as well as look at the legal and societal framework that touched on their lives. The task force dealt with the various definitions of intersex persons, which included both medical and legal. The body also sought to examine the matter from a religious perspective. It noted that the issue is often very misunderstood within Kenyan societies and often leads to negative consequences for the intersex community.

The task force, however, stated that the Constitution of Kenya provided a basis for their rights,  a situation that can be gleaned from the Baby A case. It, however, indicated a need to reform sectoral laws which would better serve to enforce their rights. The report also sought to differentiate between intersex, sex, gender and transgender. As stated above, one needs to understand the concepts before actualising their rights. It was, however, noted at the time that there was no conclusive data on intersex persons in Kenya.

They were often seen as taboos and misfits in societies and, at times, even as curses brought about on families due to some past ancestral misgiving.  The marginalisation, exclusion and harassment of intersex persons is often deeply ingrained into the Kenyan community, and many have been quick to point out that there is a need to create awareness of the challenges that such persons often face. Their exclusion has even extended to the realm of healthcare provision, where they are often unable, sometimes due to stigma and an unfounded negative perception, to obtain the care that they often need.

The report also came up with recommendations that it believed would go a long way in ameliorating the challenges that intersex persons often face. Among them was the introduction of a third gender designation in registration documents and the ability to make it easier for intersex persons to change their sex designation on their registration documents once certain conditions have been met. Moreover, the report also made it clear that there was a need for a broad-based and comprehensive definition of intersex status, rather than attempts that have been made to simply define it as the existence of both male and female sexual characteristics in a person, such as in the Persons Deprived of Liberty Act.

One, however, cannot ignore some steps that the Government has already taken to protect the rights of intersex persons, especially their safety and dignity. The Persons Deprived of Liberty Act provides a working definition of who is an intersex person for the act. The Act also gives intersex persons the right to choose who will conduct searches on them.  Section 12 of the same act further requires that intersex persons are to be held away from other inmates. All these requirements can perhaps be traced back to the case of RM, who alleged the incarceration and indignity that had befallen him once they had been in prison.

Kenya National Examinations Council v Republic & 2 others [2019] eKLR

The court has also been at the forefront of protecting the rights of transgender people. The most synonymous case in this arm often has to be the dispute between Audrey Mbugua and KNEC, centring on whether she could change her gender mark on her examination certificates. Even though KNEC, in its earlier communication, had indicated that it could, once she made her situation explicit, the body had a quick change of mind and subsequently stated that she could not change the same. She sued on this basis, seeking inter alia mandamus to compel the body to change her examination documents to those that conformed with the identity she went by.

The case eventually snaked its way to the court of appeal, which found that based on the correspondence between the parties before the sudden change of mind, Audrey held a legitimate expectation that the body would indeed effect the changes. The Court of Appeal thus found no reason to interfere with the High Court Decision that directed KNEC to cause the changes on Audrey’s documents, which had initially indicated that there was no need to have a gender mark on the certificate as per the law. One must note that the certificate was ultimately changed, though not with the gender designation that Audrey desired.

Key to note would also be the closing words of the court in the matter:

“…. Before we pen off, there is the contention that the lower court waded into a policy and legislative arena and that the judge failed to keep his mind alive to the cultural realities of the Kenyan society. There is, of course, a need for government, and Parliament in particular, to address holistically the interests of minorities such as transgender persons. Other jurisdictions have taken that approach. For instance, the Gender Recognition Act in the UK deals with gender reassignment. It cannot be the case that until there is a policy and legislative framework, persons like A are without recourse to secure their dignity guaranteed under the Constitution.”

As the learned Judge noted:

“Human dignity is that intangible element that makes a human being complete. It goes to the heart of human identity. Every human has a value. Human dignity can be violated through humiliation, degradation or dehumanisation. Each individual has inherent dignity, which our Constitution protects. Human dignity is the cornerstone of the other human rights enshrined in the Constitution. 57. In effect, lack of policy or legislative framework cannot be a bar for the court to enforce constitutional rights.”

In totality, the court has been quite clear that it will interpret the Bill of Rights in the manner that best works towards the fulfilment of the rights of any person as enshrined in Chapter Four of the Constitution of Kenya and that the lack of a legislative and policy framework, or rampant opposition, will not work to curtail the fulfilments and protection of rights to the fullest extent of the law. However, one thing that must be worked upon as a society is the understanding of concepts that are associated with LGBTQI persons. The umbrella term clumps together people where concepts such as sex, sexual orientation, gender and gender identity run through,  and within themselves, often face a myriad of issues that may be very varied. However, this should not blind one to the fact that such persons are harassed, marginalised and stigmatised within society. Those with sexual orientations not considered ‘African’, ‘Christian’ or ‘moral’ are victims of corrective rape, have poor access to health care, and are at times even expelled from learning institutions. As such, the Judiciary should be commended for its valiant efforts to protect and reinforce their rights in society.  ( 

–Dennis Ngira is an Advocate of the High Court; Brian is a law student.