The Supreme Court recently ruled that the NGO Coordination Board violated Eric Gitari's right to freedom of association by refusing to register his NGO based on his sexual orientation.
In the case, Gitari had moved to court challenging the decision of the board not to register their organisation that fights for the rights of LGBTQ.
In a decision by a majority of the five judges, the judges dismissed the appeal board ruling that the decision by the board was discriminatory
"It would be unconstitutional to limit the right to associate through denial of registration of an association purely based on the sexual orientation of the applicants," the court ruled.
The court said that all persons whether heterosexual, lesbian, gay, intersex, or otherwise will be subject to sanctions if they contravene existing laws including Sections 162, 163, and 165 of the penal code.
The court further said the use of the word sex does not connote the act of sex per se but refers to the sexual orientation of anyone's gender, whether heterosexual, lesbian, gay, or intersex
In his dissenting opinion, Justice William Ouko said the issue for determination was not about the decriminalisation of LGBTQ.
He said the board has the discretion to refuse to register any association if it does not meet certain specified conditions spelt by law.
He said it does not concern issues of morality or same-sex marriage or family units, but it's the refusal by the NGO board to reserve the names given for registration.
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