The battle by Kenyan homosexuals to form an organisations is headed to the Supreme Court following yesterday’s win at the Court of Appeal.No sooner had the court, in a 3-2 majority decision, granted the groups the long sought rights than the NGO Boardannounced they would be appealing the decision at the top court.
In the judgment upholding the decision of the High Court, the judges displayed societal split between conservatives and pragmatists. Where the law failed them, they turned to the scriptures to argue their points.
In line with rules of the court, Presiding Judge, Justice Philip Waki broke a tie after throwing his judicial weight with colleagues Justices Martha Koome and Asike Makhandia. On the minority were Justices Daniel Musinga and Roslyn Nambuye.
Had no jurisdiction
“My lady I urge this court to stay the orders as i appeal the decision,” Lawyer Harrison Kinyanjui for the NGO Boardpleaded.
Agreeing with NGO board’s argument that the High Courterred by allowing LBGTs to form their organisation, Justice Musinga said the case was never about about the institution of marriage in the first place.
He also decreed that the respondent, Eric Gitari had jumped the gun to the High Court before exhausting the NGO Board Act which provides for appeal mechanism.
“To the extent that the respondent did not follow the NGO Act, to appeal the case before the board, the High Court ought to have ordered that it followed the procedure. To that extent the court had no jurisdiction to hear the case,” ruled Justice Musinga.
The other question that was presented before the judges was whether being homosexual is by choice or unexplained nature of attraction.
On this, Justice Musinga’s view was that Kenyans voted for a Constitution that only allows a man to a marry a woman. Out of opposite sex marriage, he said, a family which the Constitution recognises as the roots of the country is formed.
Justice Nambuye took cue of the dissent saying that it was not for the courts to confer rights which had not been recognized in the Constitution and Acts of Parliament.
According to the judge, it was the work of Kenyans and Parliament to decide whether they would legalise homosexuality and same sex marriages through a referendum and legislation process.
“The Judicial pronouncement which accorded non-discrimination has not crystallised that right. It ought to be through the Constitution or legislation that one can claim a right. It ought to be through a referendum or legislation. None can be conferred judicial pronouncement. This is merely an ‘inspirational right,’’ ruled Justice Nambuye.
The two judges fired their anti-gays and lesbians’ organisation legal bullets by limiting themselves to the law.
However, they were outweighed by Justice Makhandia who wore a realist thought and Lady Justice Koome who ploughed through Kenya’s ills, including grand corruption to find out whether homosexuals were the culprits.
Justice Waki, the tie breaker, scrolled through God’s word to find favour on what Justices Makhandia and Koome thought.
Justice Makhandia fronted his argument along the line that even through majority Kenyans were for opposite sex relationships and marriages, it was a fact that those who loved people from same sex were living in families and doing their daily businesses.
He referred to homosexuals as ‘a minority’ group.
“All human beings must be respected irrespective to their orientation or sexual lives. The only test is whether those acts violate any law. In a society of Kenya there is need of tolerance. The first respondent rights were violated for declining to register the organisation,” ruled Justice Makhandia
Justice Koome in her verdict, fronted a thought of my love my choice. According to the judge, homosexuals were also humans who deserve equal rights even though they are assumed to have unpopular sexual orientation.
“Detesting gays and lesbians is outright discrimination. The board did not present any evidence that evils like corruption and others are brought by LGBT. The institution of marriage is not threatened by this group. It is an institution that one enters out of choice. This is stereotyping people and expecting that same size fits all. If people are sinners God will deal for him. No one can judge them for Him,” ruled Justice Koome.
To seal the fate of LBGT’s organisation, Justice Waki quoted the Bible- John 8:7- a verse in which Jesus taunted men who wanted to stone a prostitute to throw the first stone if they had not sinned.
“The issue of persons who are LGBT is rarely discussed in public. It cannot be doubted that it is an emotive issue. It is impossible for the country to close its eyes as if it does not have these people. We must therefore as a nation look at ourselves in the mirror, that the people in the legislature, media and executive to openly discuss the fate of these people. I will not be the first to throw and hurt the LGBT,” ruled Justice Waki.