Freedom of association is fundamental to a healthy democracy. It enables us as social beings to form organisations with others, to express our political —and other—views, and to collaborate with like-minded people.
It enriches political dialogue. It protects us from being attacked on the basis of our political views or affiliation – through actions like banning of political parties and other organisations, and putting unreasonable restrictions on their operation.
It also helps to give meaning to other rights, such as freedom of religion and freedom of expression. Most importantly, this freedom applies to all individuals residing in Kenya, regardless of how unpopular or marginalised they may be.
The Constitution is supreme and the job of the courts is to protect the Constitution and not the tyranny of the majority.
The adoption of the Constitution in 2010 means that the State cannot pick and choose which types of people are deserving of having their rights observed, respected, protected, promoted and fulfilled.
This was the interpretation of freedom of association that the High Court accepted in Eric Gitari v Non-Governmental Organisations Co-ordination Board & 4 others on April 24, 2015 (you can read the full decision at http://kenyalaw.org/caselaw/cases/view/108412/).
In early 2013, Eric Gitari, a prominent human rights lawyer, sought to establish a non-governmental organisation with the mandate of promoting human rights of LGBTIQ (lesbian, gay, bisexual, intersex and “queer”) individuals.
His inspiration included a report published by the Kenyan Human Rights Commission in 2011 explaining the ways in which members of the LGBTIQ community are marginalised in Kenyan society. He asked the NGO Board to reserve a number of potential names for the new organisation, as the first step towards registration.
The NGO Board rejected all the proposed names on three separate occasions, effectively preventing Gitari from registering his NGO and carrying out its activities. Gitari asked for an explanation.
The NGO Board stated that it refused to reserve the names because of provisions of the Penal Code —imposed on British colonies and still part of Kenya’s law— that prohibit certain same-sex sexual relations.
Mr Gitari brought a petition to the High Court asking that this refusal be ruled unconstitutional for violating his freedoms of association and expression and the right to be free from discrimination.
The High Court (Justices Isaac Lenaola, Mumbi Ngugi and George Odunga) found that there was no lawful justification for the refusal.
The Court emphasised the importance of freedom of association of “every person living in Kenya” and the right to have it limited only in “very narrow and specific circumstances”.Therefore, the fact that the Penal Code outlaws certain sexual acts could not be used to deny freedom of association.
The Court also underlined that only laws can limit rights and only in a justified way — moral or religious beliefs of a majority cannot be used to deny a minority’s rights.
Further, the Constitution protects the freedom of every person to choose or not choose a religion, and the State cannot force beliefs on anyone. The decision of the NGO Board to refuse registration based on the personal beliefs of its officials was, in the view of the Court, an abuse of power.
The High Court also held that “every person” has a right to be free from discrimination. In the words of the Court, “the principles of equality, dignity and non-discrimination run throughout the Constitution like a golden thread”.
The fact that the LGBTIQ community (or any other group) is marginalised in society is an even stronger reason for the courts to ensure that its members are not denied their constitutional rights. As a result, the High Court declared that the NGO Board’s refusal to register the National Gay and Lesbian Human Rights Commission was unconstitutional, and ordered that it be registered.
The NGO Board has asked the Court of Appeal to overturn the High Court’s order. In the papers it has filed with the Court of Appeal the Board argued that public opinion or marginalised status does in fact matter in deciding how much protection to give freedom of association. It argued that being lesbian, gay, bisexual, transgender or intersex is a choice that people make and not an innate attribute and so such individuals are not entitled to constitutional rights.
Instead, the NGO Board asked the Court to rely on “religious preference” in interpreting the Constitution. Finally, the NGO Board submitted that equality rights do not apply to everyone, since the Penal Code outlaws “homosexual behaviour”. (At present, Kenyan courts are examining those provisions of the Penal Code to determine whether they are unconstitutional.)
Another issue is that the NGO Board also suggests that it is inappropriate to refer to South African cases. This is in spite of the fact that, while Kenyan courts have no obligation to follow South African cases, they have found many very useful, because Kenya’s Constitution has many features in common with that country’s. In fact, the High Court’s decision was in line with similar cases in many other African countries and at the African Court of Human and Peoples’ Rights.
THE RESPONSE TO THE APPEAL
In reply, Gitari asks the Court of Appeal to reject the NGO Board’s appeal and uphold the High Court’s order that his organisation be registered. He argues that any limitation of constitutional rights must satisfy the carefully structured justification process in Article 24 of the Constitution, and that the NGO Board did not show that it was justified in limiting the freedom of association and right to be free from discrimination. He argued that it is not legally relevant whether being LGBTIQ is innate or not, as all “persons” entitled to constitutional rights in any case. LGBTIQ people are just as entitled to freedom of association as people with religious or political preferences He rejects the idea that there is a “religious preference” in the Constitution—which celebrates freedom of religion and religious diversity instead. The Penal Code was irrelevant in this case, which was not about the legality of same sex relations. He reiterates that the Constitution prohibits discrimination on any ground. Finally he argues that reference to South African cases does not mean adopting a law that is not Kenyan, rather it serves as a comparison between countries with similar constitutional traditions that are bound by the same international law.
Katiba Institute has filed submissions as amicus curiae in the appeal, which means that it provides the Court of Appeal with legal information on interpreting the Constitution. Katiba Institute argues that both the Constitution and international law require that freedom of association be respected and not limited without proper justification. The State must be guided by the principles and values of the Constitution, including dignity, equality, non-discrimination, and protection of the marginalised (and not by “religious preference” or public opinion).
The upcoming hearing and final decision of the Court of Appeal will certainly have an impact on the extent of freedom of association in Kenya. The consequences for the public as a whole, as well as marginalised communities and LGBTIQ persons in particular, cannot be overstated. The protection of a right that is crucial to democracy is even more important during an election year, when a transition of power may mean that some people’s views may suddenly become unpopular.
As we all pay wait for the hearing and then the decision of the Court of Appeal, it pays to recall the words of Maina Kiai, the Kenyan first UN Special Rapporteur on the rights to freedom of peaceful assembly and of association: “It’s time to cast aside our fear and embrace the broad social benefits that assembly and association rights embody – pluralism, tolerance and broad mindedness – even when exercised by people who don’t look like us, act like us or speak like us.”
By SANDRA GABALLA
The author is a member of the Canadian Bar Association and an Intern with Katiba Institute.