Building on Kenya's 2010 Constitution, which transitioned Kenya into an open and democratic society based on human dignity, equality, equity and freedom, NGLHRC has engaged in incremental litigation to make the case that the new constitution protects all citizens in Kenya regardless of their sexual orientation and gender identity. 

NGLHRC’S APPLICATION FOR JOINDER AS AN INTERESTED PARTY IN THE #REPEAL162 APPEAL

The Kenyan Court of Appeal on Friday July 9, 2021  ruled in favor of  NGLHRC’S application for Joinder as an interested party in the #Repeal162 Appeal. In July 2020, the National Gay & Lesbian Human Rights Commission (NGLHRC) applied to be enjoined (as an institution, in our own name) as the 11th interested party in the #Repeal162 Appeal Case which enables us to make submissions and present material relevant to the appeal.

Our application to joinder was heard and ruled before a three- bench  judge at the Court of Appeal. The Bench consisted of Hon. Lady Justice Martha Koome (now Chief Justice of Kenya and President of the Supreme Court), Hon. Justice Patrick Kiage and Hon. Lady Justice Agnes Murgor who adjudicated on the said hearing.

The Commission celebrates the ruling which has encouraged us to continue our mandate which is to advocate for the freedom, equality and dignity of LGBTQ+ Kenyans.

Read the full judgement here.

** Download or read a copy of our Case Digest, current through March 1, 2017 here.

The following cases are all active at various courts in Kenya:

NEW: APPEAL CHALLENGING NGLHRC’s REGISTRATION THROWN OUT BY KENYA APPEAL COURT

On March, 22nd 2019, the Court of Appeal in Nairobi, affirmed NGLHRC’s win at a lower court challenging the NGO Coordination Board decision not to officially register as a non profit organisation.

In April 2015, a three judge bench of the Constitutional Division of the High Court in Nairobi unanimously ruled that the government agency had no authentic reason to deny NGLHRC official registration status as an NGO. The Board immediately appealed the ruling which has since been dismissed by the Court of Appeal. Heard by a five judge bench, three upheld the High Court’s ruling, while two dismissed the ruling. 

• Read the case digest here

• Read the case brief here
  

Petition 150 of 2016: Equality and Non Discrimination under article 27 of the Constitution

On Friday 24th May, the High Court dismissed a petition seeking to decriminalize same sex intimacy. Filed in 2016, the case challenged the sections 162 (a), (c) and 165 of the Penal Code of Kenya which outlaw 'carnal knowledge against the order of nature and indecent acts between males whether in public or private'.

• Read the Penal Code of Kenya here

• Read the Constitution of Kenya here

During the ruling, the three judge bench noted that the petitioners failed to prove beyond doubt that the clauses were used to discriminate against the sexual and gender minorities. The bench insisted that no one was discriminated or had their rights violated due to their sexual orientation. The court also argued that the constitutional rights to privacy and dignity are not absolute.

“We hereby decline the relief sought and dismiss the combined petition. We find that the impugned sections are not unconstitutional, accordingly the combined petitions have no merit,” read Justice Roselyn Aburili.

In the filing, NGLHRC has noted that sections 162 (a), (c) and 165 of the Penal Code continue to be used to justify and excuse discrimination and violence towards persons on account of their real or perceived sexual orientation and gender identity and expression. This is against Chapter Four of the Constitution of Kenya. NGLHRC has gone to court with six human rights defenders (the petitioners), the Kenya National Commission on Human Rights and Katiba Institute to resolve this conflict of laws.

• Read the press release here

• Read the case digest here

• Read the full judgement here

KENYA APPEAL COURT MOVES TO END FORCED EXAMINATIONS OF MEN SUSPECTED OF BEING GAY

On March, 22nd, 2018, NGLHRC won its case appealing the use of forced anal examinations used on men suspected of being gay. The ruling was handed down by a three judge bench in favor of two Kenyan men who were arrested in 2015 and subjected to forced anal examinations and HIV testing to determine if they had engaged in private consensual sexual acts. NGLHRC went to court challenging the state's cruel and humiliating treatment.

The case regards a February 2015 incident involving our clients in Kwale County. Acting upon rumours that our clients might be gay, state police arrested two of our clients on suspicion that they might have engaged in 'carnal knowledge against the order of nature and indecent acts between adults' (in violation of the Sexual Offences Act of the Laws of Kenya). The two were subjected to forced HIV testing and anal examination under a magistrates order to ascertain whether they might have engaged in anal sex-consensually and in private on dates not known. They were later charged with 'carnal knowledge against the order of nature and indecent acts between adults'.

This petition sought to question whether it was constitutional to subject the two males to anal examination and whether the results of the examination can be admitted as evidence when constitutional rights to dignity, fair trial, et cetera were breached in acquiring that evidence. The case was initially lost in a lower court; a decision that NGLHRC appealed (Read that Judgment here). 

NGLHRC has long argued that forced testing is a form of torture and a violation of human rights such as privacy and dignity. On this account, the judges ruled the clients' rights had been violated. The exams are now illegal in Kenya.The forced examinations have no proven medical merit. The Kenyan Medical Association (KMA) also released a statement condemning forced examinations in September of 2017.

Read our full press release here. You can download the judgement here.