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Supreme Court Affirmed LGBTQ Right Of Association.

Photo Courtesy; LGBT activists and supporters attend a Kenyan court ruling on whether to decriminalize
same-sex relationships, in Nairobi, Kenya, 

Kenya’s highest court on Tuesday dismissed a challenge to its February ruling that allowed the National Gay and Lesbian Human Rights Commission(NGLHRC) to register as a non-governmental organization on grounds that the board decision was unreasonable and unjustified.

Kenya’s NGO Coordinating Board refused to register NGLHRC for more than a decade on grounds that it promotes same-sex behavior, which the country’s penal code criminalizes, and also the proposed names and what NGLHRC proposed were simply offensive.

 In February this year the Supreme Court, ruled that the Board was wrong to refuse the registration of the group and grounded the board’s decision as unreasonable and unjustified and that refusal to register NGLHRC the persons were being convicted before contravening the law.

The February rulings sparked a lot of opposition and criticisms from various Kenyans, clerics, and politicians who demanded that the ruling be reversed. This prompted Paul Kaluma, who is a fierce critic of homosexuality, to challenge it in March and demand the term “sex” be redefined to exclude same-sex practices.  

While challenging the Supreme Court’s ruling, Kaluma in his petition argued that the court misinterpreted the term “sex” under Article 27 (4) of the Kenyan Constitution by “referring also to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise” not to be discriminated based on sexual identity.  

Kaluma claimed the court’s ruling “usurped the sovereign power of the people” and it was “obtained through fraud, deceit, and misrepresentation of facts” by the NGLHRC defendants, which are some of the grounds the court can consider when it reviews its decision.

 The court, however, dismissed his petition on grounds that he was not a party to the case when it was heard and when the judges issued their ruling.

“The court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties,” the court noted. 

The ruling cited Article 163 of the constitution and subsequent procedural laws that allow the court to only consider a challenge of its ruling from an aggrieved party to the case.

Photo Courtesy

Led by MP George Peter Kaluma, a member of opposition politician Raila Odinga’s Orange Democratic Movement, the proposed bill would criminalize same-sex acts with penalties ranging from a suggested minimum of ten years in prison to the death penalty for “aggravated homosexuality”, defined as “engaging in homosexual acts with a minor or disabled person and transmitting a terminal disease through sexual means.”

The proposed Family Protection Act would also see a total ban on any activities “that promote homosexuality”, such as wearing flags or emblems of the LGBTQ community. 

Kaluma’s campaign has horrified advocacy groups, including a coalition in the United States which have called on President Biden to suspend trade talks.

The coalition, comprising a number of LGBTQI+, labor, trade, HIV, and human rights groups, sent a letter to the US Trade Representative, Katherine Tai, calling on Ambassador Tai to “pause STIP negotiation until President Ruto commits to vetoing this bill.” timed to coincide with her visit to Kenya for the launch of the United States-Kenya Strategic Trade and Investment Partnership (STIP). 

Members of US Congress also wrote to the ambassador in June to express their concern, saying “The United States must make clear to both Kenya and other countries considering similar legislation that we will not stand idly by as they move to criminalize or further criminalize people for being LGBTQI+.” 

Photo Courtesy: Uganda parliament passed a law on criminalization of same-sex acts.

The proposed bill in Kenya mirrors Uganda’s new Anti-Homosexuality Bill passed into law in May by President Yoweri Museveni which is considered one of the world’s harshest anti-LGBTQ laws, it fully criminalizes same-sex acts, with possible penalties of life imprisonment or the death penalty. 

The United States condemned the action by Uganda’s President. President Joe Biden called the move “a tragic violation” of human rights and said Washington would evaluate the implications of the law “on all aspects of U.S. engagement with Uganda.”

“We are considering additional steps, including the application of sanctions and restriction of entry into the United States against anyone involved in serious human rights abuses or corruption,” he said.

Uganda receives billions of dollars in foreign aid each year and could now face adverse measures from donors and investors as this move put investors in a conundrum.

In Ghana, lawmakers are in the process of amending the country’s own anti-LGBTQ legislation with propositions of a three-year prison sentence for anyone who identifies as LGBTQ and a 10-year sentence for anyone who promotes homosexuality.

Similar bills are also being proposed in Tanzania and South Sudan. Parliamentarians in those nations revealed that for the first time, a broad anti-LGBTQ legislative drive is seen across East Africa. Some regional lawmakers frame the issue as an almost existential battle to save African values and sovereignty, which they say have been battered by Western pressure to capitulate on gay rights.

Other countries in Africa have moved to end punishments for gay people. Angola, Seychelles, and Mozambique are among the countries that have changed their penal codes to stop criminalizing homosexuals.

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Gay sex is already illegal in Kenya, but the government is tolerant of gay people as it has given asylum to people from other African countries, including Uganda, who faced persecution in their home countries because of their sexual orientation.

President William Ruto has yet to comment on Mr. Kaluma’s plans but said earlier this year that the culture and religion in Kenya do not allow same-sex marriage.

Mr Kaluma is confident that the bill will become law. He told BBC: “The bill will propose a total ban on what the West calls sex-reassignment prescriptions and procedures and prohibit all activities that promote homosexuality.” He added that this would include Pride parades, drag shows, wearing rainbow colors and flags, and openly wearing “emblems of the LGBTQ+ group.”

Some LGBTQ members argue that the Bill goes beyond just a political debate but simply their existence.

“I can’t reverse what I am. This is me. We are also human beings. We do our work. We pay the bills. We pay taxes, so they have to accept us,” one transgender woman says.

 Most historians agree that there is evidence of homosexual activity and same-sex love, whether such relationships were accepted or persecuted, in every documented culture. Homosexuality existed in ancient Israel simply because it was prohibited in the Bible, whereas it flourished between both men and women in Ancient Greece.

The unfolding story of Kenya’s anti-LGBT bill serves as a sobering reminder of the complications intrinsic to any society’s quest for advancement. How the country navigates this crossroads will surely influence its identity and future for subsequent generations.

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