CASE BRIEF Non-Governmental Organisations Co-ordination Board –vs- E.G and 5 others Civil Appeal No. 145 of 2015

By Boaz Kaawe

1. PRIOR PROCEEDINGS:

1.1. The background to the appeal is that the 1st respondent floated three names under which he sought to register a non- governmental organisation with the appellant, seeking to address human rights abuses and violations suffered by the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer persons (LGBTIQ) in this country, and the request was rejected by appellant’s director thereby precipitating the petition dated the 2nd September, 2013 where by the High Court ruled that the fundamental human rights and freedom of the respondents were violated.

1.2. The Non-Governmental Organisations Co-ordination Board appealed the High Court’s judgment.

2. FACTS:

2.1. In 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 were marginalised in the Kenyan society.

2.2. He asked the Non-Governmental Organisations Board to reserve a number of potential names for the new organisation, as the first step towards registration.

2.3. 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 and the NGO Board stated that it refused to reserve the names because of the provisions of the Penal Code that prohibit certain same-sex sexual relations. (Sections 162, 163, 165).

2.4. Mr. Gitari brought a petition to the High Court asking that the refusal be ruled unconstitutional for violating his freedoms of association and expression and the right to be free from discrimination as guaranteed by the 2010 constitution.

3. LAW

3.1. Every person has the right to freedom of association, which includes the right to form, join, or participate in the activities of an association of any kind as provided for under article 36 of the 2010 constitution. More so a person shall not be compelled to join an association of any kind and any legislation that requires registration of an association of any kind shall provide that the registration may not be with held or withdrawn unreasonably; and there shall be a right to have a fair hearing before a registration is cancelled.

4. APPLICANT’S CASE

4.1. That the provisions of the penal code justified the rejection of the name/names submitted by the 1st respondent for reservation and therefore, the decision of the Director was perfectly constitutional.

4.2. That the petition to the High Court was premature for failure to exhaust the provisions of section 19 of the NGO Act before seeking court’s intervention.

5. RESPONDENT’S POSITION

5.1. The respondent’s constitutional rights to freedom of association (Article 36) and freedom from discrimination (Article 27) had been violated by the director of the Non Governmental Organisation Coordination Board by refusing to register the impugned NGO.

6. ISSUES

6.1. Issue one; whether the petition filed before the High Court was competent?

6.2. Issue two; whether in rejecting the reservation of name, the Director of the appellant was in breach of Article 36 of the Constitution?

6.3. Issue three; whether the applicable provisions of the constitution were properly construed to crystallise the right of association to the 1st respondent?

6.4. Issue four; whether the registration of the impugned NGO contravened the provisions of sections 162, 163, and 165 of the penal code?

6.5. Issue five; whether the right to form an association as provided under article 36 of the constitution was a limited right to article 24?

7. HOLDING

7.1. As to whether the petition filed before the High Court was competent, yes it was. The objection raised was that the petition was filed in contravention of section 19 of the Non-Governmental Organizations Coordination Act, No. 19 of 1990 (NGOCA) which requires that an organization that is aggrieved by the decision of the Board, to appeal to the Minister before going to court.

7.2. However, the High Court made it clear that the application for approval of a name is supposed to be made to the Director and it is the Director who makes the decision to reserve or not to reserve it.

7.3. That the Board had nothing to do with that process and the rules did not provide for an appeal to the Board. That the Board comes in under Part III of the Act which is covered in Regulation 9. And that without a decision of the Board, there can be no appeal to the Minister. So, the applicant had nowhere to go for redress other than to the High Court since the grounds upon which the reservation of name was rejected were top-heavy with constitutional questions which deserved the interpretation of the High Court.

Issue two;

7.4. As to whether in rejecting the reservation of name, the Director of the appellant was in breach of Article 36 of the Constitution, yes he was. The director refused to approve the name or names suggested by the 1st respondent because, in his opinion, such name or names were repugnant to or inconsistent with the law or otherwise undesirable. The Director relied on Regulation 8(3) (b) (ii) of the NGOCR. More specifically, the director was of the view that the interests that were to be advanced by the intended NGO would be injurious to public interest and would further criminality and immoral affairs contrary to specific provisions of the penal code.

7.5. On hearing, Waki J averred that there was no contestation from any side that the people in the country who answer to any descriptions in the acronym LGBTIQ, were persons, and that it was uncontroverted , therefore Article 36 covered persons in that group. And that like everyone else, the LGBTIQ had a right to freedom of association which included the right to form an association of any kind.

Issue three;

7.6. As to whether the applicable provisions of the constitution were properly construed to crystallise the right of association to the 1st respondent, yes they were properly construed. On the right of freedom of association, under article 36 of the constitution, the judges ruled, inter alia, that the right to freedom of association covered every person and any kind of association, and could only be reasonably and justifiably limited by law.

7.7. And that article 20(3) and (4) of the constitution enjoined the court to adopt an interpretation of Article 36 of the constitution that favoured the enforcement of a right or fundamental freedom; that Article 20(1) of the constitution, provided that the bill of rights applied to all persons, while Article 259(2) of the constitution enjoined the interpretation of the constitution in a manner that advanced human rights and freedoms. In light of the above observations, the judges concluded that the term “every person” in article 36, properly construed did not exclude homosexuals.

7.8. Construing and applying Article 20 of the Universal Declaration of Human Rights (UDHR) and Article 22 of the international Covenant on Civil and Political Rights (ICCPR) to the record, court concluded that, these provisions clearly included all individuals. That there was nothing in them to indicate that sexual orientation was a matter that removed one from the ambit of protection by the above instruments ratified by Kenya and applicable under Article 2(5) & 2(6) of the 2010 constitution.

Issue four;

7.9. On whether or not the registration of the impugned NGO contravened the provisions of sections 162, 163, and 165 of the penal code, the judges reminded themselves of their role as a court, namely, to apply the law without fear, favour, prejudice, irrespective of any beliefs held by parties to the litigation and bearing that role in mind, proceeded to make findings that the registration of the impugned NGO would not contravene the provisions of sections 162, 163 and 165 of the penal code.

7.10. And that what the 1st respondent sought to champion through the proposed NGO was the right to associate and not the right to champion criminal activities. (R.N. NAMBUYE).

Issue five;

7.11. On whether or not the right to form an association as provided under article 36 of the constitution was a limited right to article 24, yes, it was.

7.12. The minority judges viewed case law and Article 24(1), (2) and (3) of the constitution, and correctly appreciated that the right of association guaranteed to the 1st respondent under article 36 was not absolute. That it could be limited.

7.13. The test being namely, first that the limitation should be by law. Secondly, that such limitation has to take into consideration all the relevant factors namely the nature of the right, purpose of the limitation and the nature and extent of the limitation.

8. HIGH COURT DECISION

8.1. As to whether LGBTIQ had a right to form association in accordance with the law, the High Court resolved the issue in the affirmative. Averring that the constitution granted every person the right to form an association of “any kind.” And that this right could only be limited in terms of law and only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

8.2. 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 outlawed certain sexual acts could not be used to deny freedom of association.

8.3. The Court also underlined that only laws could limit rights and only in a justified way. Moral or religious beliefs of a majority could not be used to deny a minority’s rights. Further, that the Constitution protected the freedom of every person to choose or not choose a religion, and the State could not force beliefs on anyone. Therefore, 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. 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.

9. APPELLATE DECISION

9.1. As to whether the petition filed before the High Court was competent? Concurring with the High court’s decision, Waki J held that the decision was a purely administrative decision with regard to the name by which an organisation should have been registered, and that, the intention of the law in Section 19 of the NGO Act was for an appeal to lie in respect of substantive decisions such as refusal of registration, or cancellation of registration.

9.2. Ratio decidendae; That section 19 of the Act was clear that an appeal only lied to the Minister when the Board had made a decision in terms of the Act. As the Board did not make the decision in terms of the Act, there was no appeal provided for the petitioner. That moreover, there was nothing in the Regulations that provided that an aggrieved applicant could appeal a decision made in terms of the Regulations to the Minister. As such, there was no statutory prescribed internal remedy, which was prescribed or available to the petitioner. The appellant court agreed with the High court’s view that it could not close its doors on the petitioner for failure to exhaust an internal remedy that did not apply to his circumstances. For those reasons, P.N. Waki J rejected the jurisdictional objection raised by the appellants.

CONCURENCE 1;

9.3. D.K .Musinga J.A concurring with the appellants held that it was appropriate for the appellant to reject the registration of the impugned organisation since the Judiciary should have acted very circumspective when called upon to pronounce itself on an issue that was argued, debated and eventually voted upon by millions of Kenyans. That the Constitution recognized the family as the natural and fundamental unit of society and the necessary basis for social order. That the Constitution further recognized the right to marry a person of the opposite sex. By implication, any association that did not promote family values went against the spirit of Article 45 of the Constitution.

9.4. Ratio decidendai; that the values and principles of the constitution had to be respected; that it could not be right that “every person”, including persons whose practices were not permitted by our laws, had an unbridled right to form an association of whatever nature. That the words “every person” in Article 36 of the Constitution in their proper context had to be taken to mean the right of any sane, law-abiding adult to form, join or participate in the activities of a lawful association that accords with the country’s Constitution and other laws.

CONCURENCE 2:

9.5. R.N. NAMBUYE JA agreed that the meaning to be ascribed to the word “person” should have been as defined in Article 260 of the Constitution. He further agreed that all human beings, subject to the Kenyan constitutional prescriptions were entitled to protection of the constitutional guarantees enshrined therein but subject to limitations provided for either under the said Constitution or the law. And further that the right in Article 36 guaranteed to every person, was not absolute but subject to limitation.

CONCURENCE 3:

9.6. Asike Makhandia J.A agreed with the High Court‘s finding that Article 27(4) did not include “sexual orientation” as a prohibited ground of discrimination. The honourable judge was also in agreement that the word ‘including’ in Article 27(4) was not exhaustive of the grounds listed there.

9.7. Ratio decidendai; that a purposive interpretation of the grounds for limiting rights and freedoms listed in Article 27(4) was to the effect that they were not exhaustive. That court had to determine on a case to case basis other grounds that could have formed part of article 27(4) whenever called upon to. And that the appellant had failed to establish any grounds to justify the limitation of the right to associate.

DISSENT 1:

9.8. (P.N.Waki JA) As regards the competence of the case filed before the High Court, the court of Appeal held that this was not the decision contemplated in Section 19 of the NGO Act, on which an appeal lied to the Minister. That the decision was a purely administrative decision with regard to the name by which an organisation should have been registered, and the intention of the law in Section 19 was for appeal to lie in respect of substantive decisions such as refusal of registration, or cancellation of registration. That section 19 of the Act clearly provided that an appeal only lied to the Minister when the Board had made a decision in terms of the Act. But the Board did not make the decision in terms of the Act, there was no appeal provided for the petitioner. Moreover, that there was nothing in the Regulations that provided that an aggrieved applicant could appeal a decision made in terms of the Regulations to the Minister. As such, there was no statutory prescribed internal remedy, which was prescribed or available to the petitioner. It was court’s view that it could not close its doors on the petitioner for failure to exhaust an internal remedy that did not apply to his circumstances.”

9.9. Ratio decidendai; the NGO Act and the regulations had not provided an internal appeal mechanism for applicants to follow when a name was refused for reservation to register an NGO. And if there existed a procedure, the Board should have advised the 1st respondent to place an appeal before the Board or the minister since the procedure provided was for refusal of registration and not a name.

DISSENT 2:

9.10. M.K. Koome J.A. found no merit in the appeal as overturning the impugned judgement would undermine the gains made over the years in promoting, protecting and building a culture of respect and tolerance of differences that were bound in the society. Further that allowing the appeal would be stereotyping people and expecting everybody to be the same size fits all. (Paragraph 52)

9.11. Ratio decidendai; (paragraph 49) the Board failed to present any evidence to demonstrate that the evil that abound in society were brought about by the LGBTIQ, nor did they provide evidence to show persons who committed offences under sections 162,163, and 165 of the Penal Code were LGBTIQ.

DISSENT3:

9.12. R.N. Nambuye J.A reiterated that, the issue before the High Court was not whether homosexual persons had a right to engage in criminalized homosexual behaviour under the penal code, but whether homosexual persons had a right to form an association for whatever purpose; and that the High Court properly recognized that while the penal code criminalized certain sexual acts against the order of nature, the Penal Code did not criminalize homosexuality in general. Neither, did the penal code criminalize the right of association of people based on their sexual orientation.

9.13. Ratio decidendai; That Court did not fail to uphold the provisions of the penal code that outlawed homosexual behaviour but rather found that those provisions did not limit the first respondent’s right of association as provided for in article 36 of the constitution.

10. Conclusion;

10.1. I, absolutely, concur with both majority holdings of the courts because the appellants had failed to critically comprehend the provisions of the law particularly article 36 which provides for the right to freedom of association guaranteed to every person to form , join and participate in the activities of an association of any kind, whose registration cannot be constitutionally refused, rejected or withheld arbitrarily or unreasonably , save that such withdraw or withholding of registration is subject to the right of a fair hearing.

10.2. Construing sections 162, 163, and 165 of the penal code, the provisions outlaw carnal knowledge against the order of nature and do not criminalise homosexuality but rather certain acts against the order of nature which are not defined in the penal code act. Moreover the criminal act of having carnal knowledge against the order of nature is not only committed by homosexuals.

10.3. More so upon, sexual orientation is not any of the exceptions provided for as a limitation of rights under article 27(4) of the constitution, and looking at the proposed objectives of the proposed NGO, the respondent was not seeking to be registered to discuss sex, same sex marriage or encourage commission of crimes but rather to conduct accurate fact finding, urgent action, research and documentation, impartial reporting, effective use of the media, strategic litigation and targeted advocacy in partnership with local human rights groups on human rights issues relevant to the gay and lesbian communities living in Kenya.