Supreme Court justices William Ouko and Mohammed Ibrahim dissented from the ruling made by the apex court that granted the LBGTQ community the freedom to register associations.
A 43-page judgement published on Monday, March 6, revealed that the decision was reached by the majority of a five-judge bench.
Justices Ouko and Ibrahim differed with Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Njoki Ndungu as the apex court was tasked to make a decision on three matters.
"Three major issues are: whether the 1st Respondent was required to exhaust internal remedies under the NGO Coordination Act; whether the decision of the Executive Directive of the NGO Coordination Board violated Article 36 of the Constitution; and whether the decision of the NGO Coordination Board was discriminatory and contravened Article 27 of the Constitution," the document read in part.
Justice Mohammed Ibrahim
Justice Ibrahim differed with the majority on the second and third issues raised by the appellants.
Whether the decision of the Executive Directive of the NGO Coordination Board violated Article 36 of the Constitution
Article 36 of the Constitution provides for the right of freedom of association of every Kenyan. However, Justice Ibrahim countered that rights and freedoms can be limited by law if reasonable and justifiable in an open and democratic society.
Justice Ibrahim claimed that the moral compass in the country was among the guiding principles in the making of the Constitution.
"The moral foundations of our society serve as the basis for our laws found in the Constitution and the various Statutes enacted by Parliament. The laws must be observed and respected," he pointed out.
In addition, he differed with the majority over the interpretation of the words 'of any kind' in Section 1. While the other three judges argued that the phrase opened other additions, Ibrahim insisted that it had to be within the law.
"Drafters of the Constitution and indeed the people of Kenya who ratified the Constitution did not intend for the formation of groups whose activities or objectives were against the law or the Constitution to be included.
"As long as, Sections 162, 163 and 165 of the Penal Code remain valid laws, then the actions of the appellant in refusing to allow the reservations of names which include the terms “gays” and “lesbians”, cannot be considered unreasonable, irrational or illegitimate," he determined.
The judge dissented from the argument that the law was outdated and social opinions were dynamic and should allow the LGBTQ community to form associations. He maintained that such changes in the law should follow constitutionally prescribed procedures.
Whether the decision of the NGO Coordination Board was discriminatory against the 1st respondent and violated Article 27(4) of the Constitution
Justice Ibrahim also differed with colleagues over the interpretation of the world including cities in Article 27 of the Constitution provides for equality and freedom of discrimination.
He argued that the word 'including' incorporates only those listed in the section and that adding sexual orientation to the basis of discrimination should not be added based on societal changes but must follow lawful procedure.
"Perhaps the views of Kenyans have since evolved. But this cannot be determined and considered in this judgement. It can only be the subject of a referendum," he mentioned.
He explained that the addition of sexual orientation as a ground for discrimination was always contentious and that countries which added it to their law clearly defined it.
"It is therefore my considered view that it is problematic to read sexual orientation as one of the grounds to be included in Article 27(4)," he stated.
Justice William Ouko
Justice Ouko also dissented on the second and third questions raised by the appellant in court.
Whether the decision of the Executive Directive of the NGO Coordination Board violated Article 36 of the Constitution
Justice Ouko, just like Justice Ibrahim, agreed that while Article 36 provides for the freedom of association, the rights and freedoms were not absolute and were subject to the limitations listed in Article 24.
"For instance, a right to freedom of association to form, join or participate in the activities of an association whose expressed objective would offend members of a particular community, religious, ethnic or racial group, or whose name is obscene, offensive, hateful, derogatory or defamatory; or to adopt names of a proscribed group," the judge determined.
He added that he was contented with the decisions by the High Court and the Court of Appeal which rejected the proposed names of the organisation based on inconsistencies with Section 162 of the Penal Code which criminalises gay or lesbian liaisons.
Ouko maintained that the NGO Coordination Board had administrative discretion to grant or deny an application for reservation of name or registration of a name of a proposed association.
"It could reject an application if it was satisfied that the proposed activities or procedures of the association were not in the national interest, were repugnant to or inconsistent with any law or were otherwise undesirable, among other considerations," he wrote.
Whether the decision of the appellant violated Article 27(4) of the Constitution for being discriminatory against the 1 st respondent
Justice Ouko maintained that sexual orientation was not intended to be listed among the grounds of discrimination and maintained that the Constitution needed to be read in the social context in which it was adopted.
" I find nothing whatsoever in the Article or on my reading of the Constitution as a whole which suggests that the framers were addressing their minds in any way whatever to problems of discrimination on grounds of sexual orientation," he ruled.
He explained that human rights are inherent and held simply because of being human and not because of sexual orientation.
Justice Ouko pointed out that other countries made adjustments to their laws to include sexual orientation in their law, which was different from sex, being male of female.
"I believe that in Article 27(4) the phrase sexual orientation was deliberately omitted by the framers because they only intended to guarantee the right against discrimination on the ground of female or male gender," he wrote.
