Why CJ Martha Koome, Isaac Lenaola did not hear, rule on gays case

Chief Justice Martha Koome (L) and Justice Isaac Lenaola were the two Supreme Court judges who did not adjudicate on the contentious gay rights' case. [File, Standard]

Five out of seven Supreme Court judges on February 24, 2023 made their determination on gay rights in Kenya.

Three of the judges - Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala and Njoki Ndung'u - ruled that the NGO Board's decision to bar gays from forming groups was unfair, stating that despite homosexuality being illegal in Kenya, they still have a right of association.

Two judges - Mohammed Ibrahim and William Ouko - ruled on the contrary, saying they could not understand how their colleagues allowed the registration of homosexual groups when the Penal Code expressly criminalises same-sex relationships in Kenya.

"We fail to see how they allowed the formation of associations with the very terms that imply that LGBTQ actions are against the law, and are expressly banned by the Penal Code," ruled Ibrahim and Ouko.

"If the people of Kenya desire to have these laws removed, then legislators in their capacity as the voice of the people, can enact, amend and repeal the Penal Code. However, until such a time, Sections 162, 163 and 165 remain in our statute books as law, and must be obeyed," added the two dissenting judges.

The judgement by judges Mwilu, Wanjala and Ndung'u carried the day because out of the five who heard and ruled on the matter, they were the majority - three against two.

There were, however, questions on why the matter wasn't heard and determined by all the seven Supreme Court judges.

The two who did not adjudicate on the matter are Chief Justice Martha Koome and Isaac Lenaola.

The Standard understands that both judges had heard and ruled on the case when they were serving in lower courts. Koome was at the Court of Appeal while Lenaola was at the High Court, when the case was brought before them in 2019 and 2015 respectively.

And because they had earlier given their formal decisions on the matter, to avoid being perceived to have already taken sides on the case, they decided to recuse themselves from hearing and determining on the issue at the Supreme Court of Kenya.

On April 24, 2015, Justice Isaac Lenaola was among the three judges who ruled that gays have a right to form associations in Kenya.

The other two judges on the bench were George Odunga and Mumbi Ngugi.

The judges ruled that the NGO board's decision violated Article 36 of Kenya's Constitution, which states that "every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind."

The judges further ruled that conceptions of morality cannot serve as a justification to limit fundamental rights.

A petition had been filed at the High Court by the National Gay and Lesbian Human Rights Commission (NGLHRC), through its Executive Director Eric Gitari, to register under the Non-Governmental Organizations Coordination Board Act.

The Non-Governmental Organizations Coordination Board, a government agency, rejected the group's request to register in March 2013.

In denying the application, the board said that the name of the organisation was "unacceptable," and that it could not register it because Kenya's penal code "criminalises gay and lesbian liaisons."

The ruling on gays' rights was revisited in October 2016, when Justice Isaac Lenaola was being interviewed by the JSC for the position of Supreme Court judge.

During the interview on October 12, 2016, Lenaola defended his ruling that homosexuals register their organisation.

He told the Judicial Service Commission (JSC) panel that the Constitution espouses the rights of every Kenyan, including gays, bisexual and transgender people.

He said his decision took into account the Constitutional provision of freedom of association.

"The Constitution recognises that people have a right to form associations and associate with their kind and this is what guided my judgement on the matter," he told the JSC panel.

The State appealed against the High Court's 2015 ruling on registration of gay groups, culminating in a judgement issued on March 22, 2019.

Martha Koome was among the five Appellate court judges who gave their judgement on the matter in 2019.

Three judges out of the five - Martha Koome, Philip Waki and Asike Makhandia - upheld the High Court's judgement on registration of gay associations, stating that no human being should be denied his or her fundamental rights because of how he or she chooses to live.

"In a society that is diverse as Kenya, there is need for tolerance and in any democratic society, there will always be a marginalised group. This appeal, therefore, lacks merit and is dismissed," said Justice Makhandia during the judgement.

On his part, Justice Waki said the LGBTQ community has a right to freedom of association, and that the Penal Code does not criminalise those who want to form such a group.

On her part, Justice Martha Koome said: "Detesting gays and lesbians is outright discrimination. The board did not present any evidence that evils like corruption and others are brought by the LGBTQ [members]. The institution of marriage is not threatened by this group. It is an institution that one enters out of choice. This is stereotyping people and expecting that same size fits all. If people are sinners, God will deal with them. No one can judge them for Him."

Two judges, however, dissented in their ruling. They were Daniel Musinga (now the President of the Court of Appeal) and Roselyn Nambuye.

Justice Musinga, in his judgement, said registration of gays in Kenya was "hell-bent on destroying the cultural values of Kenyans, and must, therefore, not be allowed".

"The Kenyan Constitution protects the family and culture. There is a lot of pressure to adopt culture thought to be modern and fighting for the Constitution. Judiciary should act circumspectly while being asked to determine an issue that millions of Kenyans agreed upon," ruled Musinga.

He added: "The Constitution recognises a family as the foundation of the Constitution, and only allows marriage between members of the opposite sex."