Eric Gitari v NGO Co-ordination Board & 3 others Case Digest

In February 2023, the Kenyan Supreme Court ruled that the National Gay and Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a non-governmental organisation (NGO). The Supreme Court is the apex court in Kenya and its ruling is final, concluding a legal case lasting ten years. This Case Digest summarises the main findings of the ruling.

In their judgment, the Supreme Court judges held that, ‘it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants.’

Importantly, they also ruled, ‘Given that the right to freedom of association is a human right, vital to the functioning of any democratic society as well as an essential prerequisite enjoyment of other fundamental rights and freedoms, we hold that this right is inherent in everyone irrespective of whether the views they are seeking to promote are popular or not.’

In 2013, Eric Gitari, the former Executive Director of NGLHRC, challenged the Kenya NGO Coordination Board’s refusal to permit him to apply for registration of an NGO under a name containing the words ‘gay’ or ‘lesbian’. The judges ruled in his favour at the High Court in 2015 and again at the Court of Appeal in 2019.

In all three levels of the Courts, the binding decisions found that the refusal, which was on the purported basis that homosexuality is criminalised in the East African country, was unconstitutional, and directly in violation of the guarantee of freedom of association, irrespective of sexual orientation.