Associations against the order of nature?: The Kenyan Supreme Court’s Judgment on LGBTIQ Association Rights

In an interesting judgment delivered on 24th February 2023, a closely-divided panel of the Supreme Court (3:2) held that NGO Co-Ordination Board had acted unlawfully in refusing to register an organisation seeking to champion the rights of LGBTIQ persons in Kenya. In doing so, the majority of the Supreme Court (Mwilu DCJ, Wanjala and Njoki JJ) upheld the concurring judgments of the High Court and the Court of Appeal, both of which had held that: (a) LGBTIQ people had the right to form associations under the Constitution, and (b) the Constitution’s non-discrimination clause proscribed discrimination on grounds of sexual orientation, even though sexual orientation wasn’t a stipulated ground.

The constitutional background is as follows. Article 36(1) of the Constitution of Kenya stipulates that “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.” Article 36(3) states that insofar as law imposes a registration requirement, registration must not be “withheld or withdrawn unreasonably.” Article 24 states that constitutional rights may only be limited to the extent it is “reasonable and justifiable in an open and democratic society.”

In additional to the constitutional framework, there is also the Kenyan Penal Code. Section 162 of the Penal Code will be familiar to most readers: it prohibits “carnal knowledge of any person against the order of nature” (among other things). Section 165 further criminalises acts of “gross indecency” between males. These provisions were challenged in 2016, but in a judgment delivered in 2019 (EG vs Attorney-General), the High Court of Kenya upheld their constitutionality (see the analysis on this blog). The appeal from the High Court’s judgment is presently pending before the Court of Appeal.

Acts and Identities

The NGO Co-Ordination Board’s point was simple. It argued that Sections 162 and 165 of the Penal Code criminalised homosexuality. An organisation specifically devoted to championing the rights of LGBIT persons, therefore, had as its object the promotion of illegal acts. Consequently, the Board was justified in refusing registration.

The High Court, a majority of the Court of Appeal, and a majority of the Supreme Court, all disagreed. In paragraph 63, the Majority noted:

Although Sections 162, 163, and 165 prohibits any person from committing acts that go against the order of nature, we observe that the said sections do not distinguish between heterosexual or homosexual offenders. The sections do not limit the perpetrators of such acts to persons who are LGBTQ; indeed, the words, “any person”, connote a potential offender under those sections who may very well be heterosexual, homosexual, intersex or otherwise. 

In other words, therefore, the Supreme Court held that the Penal Code criminalises acts and not identities (or orientations). Readers will note a delicious irony here: the distinction between acts and identities has, in the past, been deployed by judiciaries to uphold anti-sodomy laws, by holding that the constitutional commitment to anti-discrimination does not extend to “acts.” Indeed, this was the precise reason why the High Court upheld the Penal Code provisions in EG vs Attorney General. Compare the following line from the Supreme Court’s judgment in this case (paragraph 63):

… the words, “any person”, connote a potential offender under those sections who may very well be heterosexual, homosexual, intersex or otherwise.

With paragraph 296 of the High Court’s judgment in EG vs Attorney General:

The language of section 162 is clear. It uses the words “any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.

One will see that this is essentially the same observation. In EG vs Attorney-General, this logic was used to uphold the anti-sodomy law. Today, it has been used to protect the rights of LGBIT persons to form associations for the purpose of championing their rights. Indeed, the dissenting judgments of Ibrahim and Ouko JJ recognises this, because both are clear in their view that sections 162, 163, and 165 criminalise homosexuality (Ibrahim J, paragraph 102; Ouko J, paragraphs 190, 191): there’s no pussyfooting around “acts” and “identities” (indeed, Ibrahim J specifically states that heterosexual couples engaging in anal sex are acting illegally (paragraph 101)). This, of course, is in the teeth of the High Court’s judgment in EG vs Attorney-General: so we can only join with Ouko J.’s dissent in finding inspiration in Shakespeare, and say that the argument has just been “hoist with its own petard!”

Discrimination

The majority also held – concurring with the High Court and the majority in the Court of Appeal – that the Kenyan Constitution prohibits discrimination on grounds of sexual orientation. The majority reasoned on two grounds: first, that Article 27(4) – the non-discrimination provision – is inclusive in nature. It states that “the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” This means that grounds not explicitly stipulated in Article 27(4) can be incorporated into its ambit. And secondly, that “sexual orientation” can be read into sex (paragraph 79).

The dissents disagreed strongly. Ouko and Ibrahim JJ referred to the framing documents – especially the debates around defining marriage – to argue that the framers explicitly intended to exclude sexual orientation from being protected by the non-discrimination guarantee (Ibrahim J, paragraphs 118-123; Ouko J, paragraphs 218 – 225). And on the second point, they argued that “sex” referred specifically to biological sex (in terms of X and Y chromosomes), and therefore could not be read to include sexual orientation (Ibrahim J, paragraph 113; Ouko J, paragraph 2017).

Three observations may be made here.

First, on reasoning by analogy. When we ask ourselves what the word “including” actually includes, we need to look at what follows after that word, and draw out the common features of that which is specifically included. Now, what is common to “race”, “sex”, “pregnancy”, “marital status”, and the other terms in Article 27(4)? I would suggest that they are all (or at least, most) examples of ascriptive identities, which have been the historic and current sites of disadvantage. Sexual orientation – as a category – shares exactly these features.

Secondly, on framers’ intentions. Ever since Dworkin’s famous example of the 14th Amendment to the US Constitution and the question of school desegregation, we know that there is a distinction between the concept that the framers articulate in the constitutional text, and the conception that they believe is the correct conception of that concept. The framers’ intentions – or desires – about how they wanted or thought that a particular provision would be implemented on a case-to-case basis (the conception) does not control the actual meaning of the concept: that meaning must come from a reading of the text, the structure, and the overall moral vision of the Constitution. When we combine this with the point above, we can see that the majority’s reading is justified notwithstanding the specific intention the framers might have had.

Thirdly, in the past, discussions on sex equality and discrimination under the Kenyan Constitution have not limited “sex” to chromosomes. For example, in the Kenyan High Court’s famous judgment on the representation of women in Parliament, “sex” and “gender” are used interchangeably. Without getting into complicated social theory debates around the distinction between “sex” and gender”, one must point out here that the distinction matters: to the extent that the Kenyan Constitution is committed to a transformative vision of gender equality, it is not simply about chromosomes, but also about identifying – and countering – stereotypes about the genders that have been responsible for historical and continuing gendered disadvantage. On this expanded vision of sex equality and non-discrimination, the “reading in” of sexual orientation into “sex” makes sense: discrimination against LGBTIQ persons stems, in part, from the same stereotyping that is at the root of gender discrimination: stereotypes about how men and women should behave – heteronormativity, in short: where there is an “alignment of biological sex, sexuality, gender identity and gender roles.” We can therefore see, quite clearly, that there is a clear and cogent bridge between discrimination on grounds of sex and discrimination on grounds of sexual orientation, a bridge that is held up by the pillars of gender identity and gender roles.

Conclusion

Both the majority and the dissents were at pains to state that the case was not about the decriminalisation of same-sex relations in Kenya, as that was already pending before the Court of Appeal. For all practical purposes, however, it is difficult to see how the majority judgment – especially its findings on discrimination – are consistent with any outcome other than decriminalisation. Majoritarian beliefs – as hinted at in the dissents – cannot be the answer: the very point of a non-discrimination guarantee is to protect people from majoritarian-fuelled discrimination. With this judgment now the law of the land, it will be interesting to see how the pending decriminalisation case proceeds in the Court of Appeal and then – inevitably – at the Supreme Court.