The Supreme Court on Tuesday dismissed Homa Bay Town Member of Parliament Peter Opondo Kaluma's case in which he had asked the apex court to review its decision on the definition of sex.
Kaluma was challenging the Supreme Court ruling and the manner in which the highest court in the land had characterised the term sex in the LGBTQ case.
"Flowing from our findings above, the final orders to be made are as follows: (i) The Notice of Motion dated 9th March 2023 is dismissed," the ruling read in part.
The Supreme Court held that Sections 162,163 and 165 of the Penal Code and the provisions of Article 24 of the Constitution do not convey the intention to limit the freedom of association of LGBTQ persons merely due to their sexual orientation.
"On the provisions of Article 36, the Court found that the 1st respondent’s limitation of the 2nd respondent’s right to freedom of association was not proportionate to the aim sought for registration of the proposed NGO.
"This Court also held that the word “sex” as used in Article 27 of the Constitution, was to be interpreted as to include the expression “sexual orientation," the Supreme Court observed.
In his application before the Supreme Court, dated March 9, 2023, Kaluma asked the Judges to stay the orders which had compelled NGO Coordination Board to register members of the LGBTQ community.
Kaluma also asked the Judges to review and set aside the judgment of February 24, 2023, where at paragraph 79 the Court found and decreed that the use of the word sex under Article 27(4) of the Constitution ‘refers also to sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise.
"The Court be pleased to review and set aside the judgment of this Court dated 24th February 2023 where at paragraph 79 it found and decreed that the appellant’s action of refusing to reserve the name of the 1st respondent’s intended NGO on the ground that Sections 162, 163 and 165 of the Penal Code criminalises gay and lesbian liaisons was discriminatory in view of Article 27 (4) of the Constitution," the judgment read in parts.
However, while dismissing Kaluma's appeal, the Supreme Court established that homosexuals have the right not to be discriminated against directly or indirectly.
The Court went further and noted that Kaluma, a vocal critic of the LGBTQ community, did violate the rights of the gay community.
"Consequently, we did, by a Majority, agree with the findings of the High Court, and the Court of Appeal that LGBTIQ persona have a right to freedom of association, which includes the right to form an association of any kind," the Supreme Court affirmed.
The Supreme Court also ordered the Homa Bay Town Member of Parliament to bear the costs of the appeal.
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