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Supreme Court rules LGBTQ can form association

The Kenyan Supreme Court on Tuesday dismissed Homa Bay Town legislator Peter Opondo Kaluma’s appeal in which he challenged the manner in which the highest court in the land had characterised the term sex in the LGBTQ case.

The judges found that the case had no merit and ruled “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 apex court held that Sections 162,163 and 165 of the Penal Code and the provisions of Article 24 of the Constitution was not intended 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 judges noted. 

“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 the MP 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 court ordered the Homa Bay Town Member of Parliament to bear the costs of the appeal.

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