A Critical examination of the Supreme Court’s Decision on LGBTQ Rights: Contradictions, oversights, and unfulfilled Promises
by admin on | 2025-03-06 08:56:44
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I present a critical analysis of the recent decision made by the Supreme Court of Kenya (SCORK) on the registration of an NGO bearing the words \"Gay & Lesbian\" in its name. My arguments highlight the inadequacies in the court\'s decision, which expanded the issue beyond the name and conflated it with the registration of an NGO for gays and lesbians, further expanded it to become a constitutional question relating to two fundamental rights in the Bill of Rights. First, the court missed the crucial point by failing to define the terms \'gay\' and \'lesbian\' and put them side by side with whatever is proscribed under the penal code. This failure to give meaning to the terms left the issue of the registration of the NGO open-ended, making the enjoyment or denial of the rights of those concerned to be an all or none affair. Secondly, this review looks into the nature and purpose of the right to associate. I argue that this right confers more benefits than just providing an opportunity for an association to practice certain identifiable aspects of what is thought to be the associates\' interest. The right may relate closely to and enable the freedom of thought and conscience. Further, I examine the role of registration and argue that it is not unconstitutional for the state to refuse to register an entity whose name or aims and objectives clearly denote the commission of a crime or go against prevailing public policy. Further, that denial of registration an entity is not itself a bar to the enjoyment of the right to associate. The judges having unanimously agreed on the questions in dispute, I find the majority legal reasoning contradictory. The majority conceded, albeit erroneously, that to be \'gay and lesbian\' is a crime in Kenya, yet still required the state to register an NGO whose objectives include the promotion of ‘gay and lesbian’ activities. We applaud the minority legal reasoning of Justices Ouko and Ibrahim, which provided a more nuanced approach to the issues at hand, considering the issues the court had identified for determination...
