Kenya: Kaluma Suffers Supreme Court Defeat in Anti-LGBTQ Suit

Kenya's Supreme Court (file photo).
12 September 2023

Nairobi — The Supreme Court has dismissed an appeal by Homa Bay Town lawmaker Peter Kaluma contesting decisions by the High Court and Court of Appeal allowing registration of LGBTQ lobby groups under the NGOs Act.

The two superior courts arrived at the finding after settling on a judicial interpretation defining the phrase 'every person' under Article 36 of the Constitution as all persons regardless of their sexual orientation.

Challenging the position, Kaluma accused the courts of opening a flood gate for the promotion of a pro-gay and lesbian agenda in the country.

In its ruling dismissing Kaluma's appeal on Tuesday, Justices of the Supreme Court termed the appellant as incompetent saying he was not party to the suit from the beginning.

"Section 21A of the Supreme Court Act provides for the circumstances pursuant to which this Court may review its own decision on an application filed by "a party"," the court asserted.

The Supreme Court said Kaluma had failed to prove that decision from the two superior courts under it were obtained through deceit.

"The applicant has [not] demonstrated to our satisfaction that the impugned Judgment was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto."

Appeal threshold

The court said Kaluma's bid fell short of its threshold for appeals.

"This Court has neither jurisdiction to sit on appeal nor to review its decisions other than in the manner provided for by Section 21A of the Supreme Court Act," a five-member bench led by Deputy Chief Justice Philomena Mwilu stated.

"In our view, the application is a disguised appeal from this Court's judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law," the bench observed.

Court decisions faulting the NGO Coordination Council's refusal to register an LGBTQ lobby group had prompted condemnation from the political class which accused the judiciary of imposing itself on Kenyans.

"Every arm of government has its own mandate. Parliament is the law-making organ and to ensure the government follows the constitution. The Executive mandate is to govern the people guided by the law," opposition leader Raila Odinga said in March.

2019 LGBTQ verdict

The contested rulings came against the backdrop of a 2019 Constitutional Court decision upholding sections of the Penal Code criminalizing same-sex relations it deemed inconsistent with Article 45 of the Constitution.

Justices Roselyne Aburili, Chacha Mwita and John Mativo noted that invalidation of Sections 162 and 165 of the Penal Code would violate the constitutional provision that defines marriage as a union between consenting adults of the opposite sex.

"Article 45 (2) of the Constitution only recognises marriage between adult persons of the opposite sex. In our view decriminalizing same-sex sex on grounds that it is consensual and is done in private between adults would contradict the express provision of Article 45 (2)," the judges stated.

The bench said a majority of Kenyans - who backed the express constitutional provision defining marriage as a union between persons of the opposite sex and enjoined the State to protect the family - would be undesirous of changes to the Penal Code that would circumvent Article 45.

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