In March, we began our work in provision of free legal aid for sexual and gender minorities in Kenya.
On 2nd April 2013, we sought to reserve a name with the NGO Board for purposes of registration as an NGO. After 3 failed attempts, we instituted Petition 440 of 2013.
Our Wins
Click the timeline to learn about NGLHRC's legal successes
We opened a walk-in centre that conducts research responds to and redressed cases of human rights violation against all persons on ground of their sexual orientation and/or gender identity whether real or imputed.
In November, we instituted our Because Womxn program to provide programming geared specifically towards the needs of LBTIQ women.
On the 24th April 2015, we had the first judgement from a three-judge bench of the High Court that confirmed our Freedom of Association for persons of diverse identification.
On 16th November, we filed Petition 51 of 2015 at the High Court of Mombasa. The petition stated that the petitioners underwent torture (forced anal testing) to collect samples.
On 15th April 2016, we instituted Petition 150 of 2016 challenging the constitutionality of sections 162 (a) and (c) and 165 of the Penal Code.
On 2nd June 2016, Justice Lenaola determined that the issue was of Public Importance and weighty and required debate and deserved a constitution of a bench of judges. An order was then issued for the constitution of a judge bench to hear and determine the matter.
On the 16th June 2016, the High Court of Mombasa dismissed the Petition stating that the subordinate court was well within its right to issue such orders.
The Commission appealed the same at the Court of Appeal of Mombasasa under Civil Appeal 56 of 2016 Msa and was granted a 5 judge bench in July.
Published our very own Paralegal Resource Guide which is intended to be used as a guide by paralegals who are usually the first contact by LGBTIQ+ persons on the ground.
Published our Paralegal Pocket Resource Manuals that are easy reference guides to Kenyan law for our paralegals on the ground, and later translated it to Swahili.
Decentralised the services of our Legal Aid Centre to communities that may have less accessibility to our services.
Because Womxn was decentralised and expanded to other regions to meet the needs of other constituents.
Because Womxn Uzima Camp was pioneered, having our 1st Camp held from 1st to 4th June in Nyeri County and had 25 LBQT participants.
The consolidation of Petitions 150 of 2016 & 243 of 2016 (#Repeal162) due to a common thread; both challenged the constitutionality of sections 162 (a), (c) and 165 of the Penal Code. The petitioners also sought an order directing the State to develop policies and adopt practices prohibiting discrimination on grounds of sexual orientation and gender identity/ expression in the health sector.
On 22 March, the 5 judge bench assigned overturned the judgement of the High Court and an order was issued stating that the anal exams violated the rights to freedom from torture, right to a fair trial, freedom from discrimination, right to dignity, and freedom and security of the person.
An appeal of the decision of the High Court concerning Petition 440 of 2013 was instituted by the NGO Coordination Board (Civil Appeal 145 of 2019).
On 22nd March, judgement was passed dismissing the appeal by the NGO Coordination Board & confirming the Right of Association for LGBQ people.
On 24th May, Judgement was passed dismissing #Repeal 162, stating there was not enough evidence to prove that these sections were repugnant to the rights as pointed out in submissions, that agreeing would open the door to marriage equality which would be a threat to the family structure, and that the sections were not unconstitutional due to their broad use.
The 2nd Uzima Camp was held from August 4th to 7th in Kirinyaga County and had 40 participants.
From 1st to 4th October, the Commission had its 3rd SOGIE-SC Intervarsity Debate & Moot Court Competitions, hosted by Moi University School of Law in Eldoret, Uasin Gishu County.
In November, we filed an appeal challenging the judgement of the #Repeal162 case in its entirety.
In July 2020, the Commission applied for joinder on the #Repeal162 case, in its own legal persona, in order to be able to produce evidence to strengthen the case.
On 9th July 2021, the court ruled in favour of the Commission to be enjoined in the #Repeal162 case in its own name.
The Commission signed a Memorandum of Understanding with KMUN that yielded platforms for partnerships.
The 3rd KenyaMun Intervarsity Debate and 5th SOGIE-SC NGLHRC Debate and Moot Court Competitions with over 300+ participants.
The 3rd Annual Uzima Camp was held on the 22nd to 26th of September in Kajiado County, and curated a safe space for 12 LBQ womxn & ITGNC persons.
27th November, the Commission was invited to the 2nd KenyaMun Mock Debate Competition where we were able to engage and interact with 300+ delegates from various institutions on access to justice for LGBTQA+ persons, amongst other issues facing sexual and gender minorities.
On 27th January, Petition 4 of 2022 was instituted by Legal Resource Foundation (LRF) on the Right to education as a child was expelled from Snr Chief Koinange Girls in Kiambu County on accusations of being a lesbian.
NGLHRC applied to be enjoined to the Right to Education case on 9th March.
On 26th April, the Commission held a Strategic Meeting at Kenya National Commission on Human Rights alongside LRF.
On 23rd & 24th June, the Commission had its 5th SOGIE-SC Intervarsity Moot Court Competitions, hosted by Moi University School of Law in Eldoret, Uasin Gishu County.
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.
Repeal 162
Petition 150 of 2016
Historically, the provisions of the Kenyan Penal Code in sections 162(a) and c and 165 have been used to structurally place LGBTIQ+ Citizenry on the margins of Society. Since the genesis of the Legal Aid Centre in 2013, we have documented worrying trends of justification and excuse of Violence and human rights violations on account of Sexual and Gender Minorities in Kenya.
Filed in April 2015, this case challenges the constitutionality of sections 162 (a) and (c), 163 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’.
NGLHRC has noted that these sections continue to be used to defend and excuse discrimination and violence towards persons on account of their real or perceived sexual orientation and gender identity and expression, against Chapter Four of the Constitution of Kenya. NGLHRC is presently before the Court of Appeal with six human rights defenders (the petitioners), the Kenya National Commission on Human Rights and Katiba Institute to resolve this conflict of laws.
The High Court in 2019, in failing to consider the impact of the enforcement of these sections and the indirect discrimination of these laws on Sexual and Gender Minorities in Kenya, declined the invitation to declare the said provisions unconstitutional on grounds of vagueness, uncertainty, ambiguity and over broadness.
The 2019 high court decision left us at unfortunate moment, it looked at us on the face and told us, it’s not yet time, it downplayed all the gains that we have had so far, it replaced the smile with tears, it eroded the marvelous anti-discriminatory jurisprudence from the high court, it allowed for the continual intrusion to individuals’ autonomy .But one day, the smile in the constitution shall be on every citizen’s face including the LGBTIQ+ Kenyans and Non Kenyans as Albie Sasch once observed.
NGLHRC will continue to seek to have sections 162 (a) and (c), 163 and 165 of the Penal code declared unconstitutional; or null and void to all the extent and all avenues as provided by the law. We are presently before the Court of Appeal challenging
Timeline of Events
15th April 2016 – We instituted Petition 150 of 2016 challenging the constitutionality of sections 162 (a) and (c) and 165 of the Penal Code which violate Articles 27, 28, 29, 31, 43, and 50 of the Constitution. The petition was filed under a certificate of Urgency dated 18th May, and Submissions were filed on 24th May.
2 Jun 2016 – Justice Lenaola determined that the issue was of Public Importance and weighty and require debate and deserved a constitution of a bench of judges and an order was issued for the constitution of a bench of judges to hear and determine the matter
2018 – Petitions 150 of 2016 and 236 of 2016 were consolidated since they both challenged the constitutionality of sections 162(a) (c) and 165 of the Penal Code.
22 feb 2018 – The First hearing was held. It bears mentioning that the court was full due to high community turnout and moved to a larger courtroom
22 Feb 2019 – Judgement was meant to be handed down but was not ready and postponed to 24 May 2019
24 May 2019 – The Judgement was delivered dismissing the petition stating there was not enough evidence to prove that these sections were repugnant to the rights as pointed out in submissions, that agreeing would open the door to marriage equality which would be a threat to the family structure, and that the sections were not unconstitutional due to their broad use, Subsequently an Appeal was filed in November of the same year.
Jul 2020 – NGLHRC applied for joinder so that NGLHRC, as its own legal persona, would be able to produce evidence to strengthen the case.
9 Jul 2021 – the court ruled in favour of NGLHRC to be enjoined in the case.
Forced Anal testing Case
Petition 51 of 2015
Civil appeal 56 of 2016
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 privately on dates unknown. 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 examination results 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 judgment here.
Timeline of Events
18 Feb 2015 – GMN and COI were arrested in a bar in Diani on suspicion of engaging in homosexual activities and distributing pornographic material. They were charged on 20th Feb at a resident magistrate court under sections 162 (a) and (c) and 181 (1) (a) of Penal Code, and section 11 A of Sexual Offences Act. On the 20th of February, the prosecution applied for an order in court compelling our clients to undergo medical testing at Makadara General Hospital to determine they were contravening sect 162.
16 Nov 2015 – We filed Petition 51 of 2015 at the High Court of Mombasa: COI and GMN V. Resident Magistrate Court of Kwale and 4 Others. The petition was to state that the petitioners underwent torture to collect samples. We sought to challenge
- The manner in which the evidence was collected and therefore the constitutionality of the criminal case against GMN & COI;
- Forced anal examinations and
- non-consensual medical examinations on GMN & COI.
Further, the petition stated that their Rights to. Freedom from torture, Dignity, Privacy, Freedom from Discrimination, and to a Fair Trial had been violated.
16 Jun 2016 – The High court dismissed the petition stating that the subordinate court was well within its right to issue such orders.
NGLHRC appealed this decision at the Court of Appeal of Mombasa under Civil Appeal 56 of 2016 Msa – In July 2016 – we were given a 5 judge bench
22 March 2018 – the 5 judge bench overturned the judgment of the High Court and an order was issued stating that the anal exams violated the client’s rights to freedom from torture, right to a fair trial, freedom from discrimination, right to dignity, freedom, and security of the person.
Freedom of Association
Petition 440 of 2013
In 2013 The National Gay and Lesbian Human Rights Commission attempted to register as a non-governmental organization (NGO) meant to focus on the violence, discrimination, and other human rights violations regularly perpetrated against the LGBTI community. The NGO Co-ordination Board, rejected the application due to the NGO’s name which includes references to gays and lesbians. After multiple, unsuccessful attempts to revise the name, Gitari filed suit against the Board for declaratory relief, arguing that the failure to recognize the NGO was a violation of his and others’ constitutionally guaranteed right to assemble under Article 36 of the Kenyan Constitution guarantees the right to freedom of association for all persons.
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.
On March 22nd 2019, the Court of Appeal in Nairobi affirmed NGLHRC’s win at a lower court, challenging the NGO Coordination Board’s decision not to officially register as a non profit organisation.
The NGO coordination board appealed through petition 16 of 2019 at the Supreme Court of Kenya. On 24 February 2023, in a landmark ruling, the Supreme Court of Kenya affirmed the decisions of the High Court and the Court of Appeal, allowing for the registration of The National Gay and Lesbian Human Rights Commission as a non-governmental organization (NGO) with the words ‘gay’ and ‘lesbian’ in its title. Find here the full judgement
Timeline of Events
2nd April 2013 – we sought to reserve a name with the NGO Coordination Board for registration as an NGO. We were advised that the names were unacceptable and should be reviewed. After three attempts, we sought the services of an advocate and instituted the petition.
24th April 2015 – The 1st judgment from the high court from a 3-judge bench court was delivered, confirming our Freedom of Association for people of diverse identities. The ruling expounded Art. 27 of the Constitution to Include non-discrimination of people
The NGO coordination board appealed the matter, becoming Civil Appeal 145 of 2019.
29th March 2019 – Judgement was passed dismissing Civil Appeal 145 of 2019 and confirming the right of Association for LGBQ people. Article 36 of the Constitution on the right to freedom of association covered any person and any association and could only be reasonably and justifiably limited by law. The NGO coordination board filed an appeal at the Supreme Court of Kenya under petition 16 of 2019
24 February 2023 – In a landmark ruling, the Supreme Court of Kenya affirmed the decisions of the High Court and the Court of Appeal, allowing for the registration of The National Gay and Lesbian Human Rights Commission as a non-governmental organization (NGO) with the words ‘gay’ and ‘lesbian’ in its title. Find here the full judgement
9th March 2023 – Homabay MP George Kaluma filed a Petition with the Supreme Court seeking the review and set aside its Judgment of this 24th February. Notably, Mr. Kaluma is not among the original petitioners of interested parties in this case.
12th September 2023 – The Supreme Court Dismissed Peter Kaluma’s petition, citing that the petition did not meet the threshold outlined in Section 21A of the Supreme Court Act. Find here the full Judgement
Right To Education
Petition 4 of 2022
In December 2021 and February of 2022, the Cabinet secretary of Education in Kenya, made public discriminatory remarks calling for learners perceived to be LGBTIQ+ persons to be arbitrarily made day scholars, a move ‘to curb homosexuality in schools. The remarks, unfortunately, recorded a spark increase in cases of stark discrimination in learning in schools of learners who are prejudicially perceived to be of diverse sexual orientations and gender identities. Consequently, some heads of schools, following these remarks, embarked on a spree of unlawful, tyrannical and arbitrary expulsion and suspensions of learners perceived, bigotedly, to be LGBTIQ+ learners. Actions that not only subject the learners to unwarranted ridicule, trauma and exclusion but also seed homophobia and hatred in the young society.
Worryingly, the said bias has largely infringed on the constitutionally guaranteed rights to education of learners and the child’s best interest. The Commission is currently enjoined in a public interest litigation matter in Kiambu High Court; in incremental strategic litigation to create legal protections for learners before the Kenyan High Court in a case where a learner was arbitrarily expelled from school on the basis of their imputed sexual orientation, actions which heavily infringed on their right to education. We are partnering with the Legal Resources Foundation (LRF) in this public interest litigation – Rights to Education.
Timeline of Events
27 Jan 2022 – Petition 4 of 2022 was filed by Legal Resource Foundation (LRF) in defence of a child who was expelled from Snr Chief Koinange Girls in Kiambu County on accusations of being a lesbian.
9th March 2022. – NGLHRC applied to be enjoined to the case
25 April 2022 – The hearing for application to joinder was meant to be done, but other parties had not complied with the court’s direction
26 April 2022 – There was a Strategic Meeting at Kenya National Commission on Human Rights alongside LRF.
21st July 2022 – The High Court of Kenya at Kiambu ruled to allow our application for Joinder as interested parties in Petition 4 of 2022. The Commission has formally been enjoined in the matter as an Interested party. Consequently, the Commission will submit before the Court and provide invaluable insights on the best interest of a child, rights to education, equality and non-discrimination of learners biasely perceived to be LGBTIQ+ persons, Punitive measures adopted by learning institutions that aids and abets conversion therapy practices. The court directed that we be served with all relevant documents in 7 days after which we have 7 days to file a replying affidavit.