NAIROBI (Thomson Reuters Foundation) - A prominent LGBT+ organization in Kenya won the right to be recognized as a charity on Friday in a Court of Appeal ruling that could give greater freedom to persecuted sexual minorities across the country.
The court ruled that the government could not use colonial-era laws criminaliszing gay sex to block the National Gay Lesbian Human Rights Commission (NGLHRC) from being registered as a non-profit organization.
Three of the five judges upheld an earlier verdict by the high court, saying sexual minorities were entitled to the same rights as all other Kenyans, including the right to associate.
“The judges have chosen to stand by the constitution that allows for like-minded persons to meet and organize formally,” Njeri Gateru, NGLHRC’s executive director, said in a statement.
“The ruling only brings inclusivity and sets a positive precedent for other rights organizations in Kenya, and around Africa.”
The government could still appeal the decision in the Supreme Court.
Homosexuality is taboo in the east African nation and persecution of sexual minorities is rife. Under sections of Kenya’s colonial-era law, gay sex - or “carnal knowledge against the order of nature” - is punishable by up to 14 years in jail.
Campaigners say the laws have long promoted homophobia in the largely conservative Christian country - and are used daily to persecute and discriminate against sexual minorities.
They face prejudice in getting jobs, renting housing or seeking medical care or education.
Hate crimes like blackmail, extortion, physical and sexual assault are common - but most are too fearful to go to the police due to their sexual orientation, say rights groups.
Established in 2012, the NGLHRC has fought hundreds of cases of abuse against sexual minorities in Kenya’s courts - including an ongoing battle to have gay sex decriminalized.
In March last year, it won a landmark case in the appeal court, which ruled it was illegal to force people suspected of being homosexual to undergo anal examinations, after the NGLHRC represented two men who were arrested and forcefully examined.
But it has struggled with official recognition, with the government’s Non-Governmental Organisations Coordination Board rejecting its application for registration as a charity on the basis that it was for gay and lesbian people.
The organization challenged the decision in Kenya’s High Court, arguing that it violated the constitution which guarantees the right to freedom of association for all persons.
The High Court ruled in favor of the NGLHRC in 2015, saying that it should be allowed to register as every person has the right to freedom of association, irrespective of sexual orientation.
The government however took the matter to the court of appeal the following year.
Tea Braun, director of the Human Dignity Trust, said the verdict affirmed every Kenyan’s constitutional right, including those of sexual minorities.
“In any open and democratic society, equal rights must prevail,” said Braun. “People who seek to meet and organize to safeguard respect for human rights must be allowed to do so with the full protection of the law.”
Reporting by Nita Bhalla @nitabhalla, Editing by Claire Cozens. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women's and LGBT+ rights, human trafficking, property rights and climate change. Visit news.trust.org
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