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Our Wins


Click the timeline to learn about NGLHRC's legal successes

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Our Wins


Click the timeline to learn about NGLHRC's legal successes

NGLHRC-69.jpg

Court Judgements


Learn about NGLHRC's constitutional litigation 

Court Judgements


Learn about NGLHRC's constitutional litigation 

 

Building on Kenya's 2010 Constitution, which transitioned Kenya into an open and democratic society based on human dignity, equality, equity and freedom, NGLHRC has engaged in incremental litigation to make the case that the new constitution protects all citizens in Kenya regardless of their sexual orientation and gender identity. 

 

** Download or read a copy of our Case Digest, current through March 1, 2017 here.

The following cases are all active at various courts in Kenya:

NEW: KENYA APPEAL COURT MOVES TO END FORCED EXAMINATIONS OF MEN SUSPECTED OF BEING GAY

On March, 22nd, 2018, NGLHRC won its case appealing the use of forced anal examinations used on men suspected of being gay. The ruling was handed down by a three judge bench in favor of two Kenyan men who were arrested in 2015 and subjected to forced anal examinations and HIV testing to determine if they had engaged in private consensual sexual acts. NGLHRC went to court challenging the state's cruel and humiliating treatment.

The case regards a February 2015 incident involving our clients in Kwale County. Acting upon rumours that our clients might be gay, state police arrested two of our clients on suspicion that they might have engaged in 'carnal knowledge against the order of nature and indecent acts between adults' (in violation of the Sexual Offences Act of the Laws of Kenya). The two were subjected to forced HIV testing and anal examination under a magistrates order to ascertain whether they might have engaged in anal sex-consensually and in private on dates not known. They were later charged with 'carnal knowledge against the order of nature and indecent acts between adults'.

This petition sought to question whether it was constitutional to subject the two males to anal examination and whether the results of the examination can be admitted as evidence when constitutional rights to dignity, fair trial, et cetera were breached in acquiring that evidence. The case was initially lost in a lower court; a decision that NGLHRC appealed (Read that Judgment here). 

NGLHRC has long argued that forced testing is a form of torture and a violation of human rights such as privacy and dignity. On this account, the judges ruled the clients' rights had been violated. The exams are now illegal in Kenya.The forced examinations have no proven medical merit. The Kenyan Medical Association (KMA) also released a statement condemning forced examinations in September of 2017.

Read our full press release here. You can download the judgement here.

Petition 150 of 2016: Equality and Non Discrimination under article 27 of the Constitution

This case challenges the sections 162 (a), (c) and 165 of the Penal Code of Kenya which outlaw 'carnal knowledge against the order of nature and indecent acts between males whether in public or private'.

  • Read the Penal Code of Kenya here
  • Read the Constitution of Kenya here

NGLHRC has noted that sections 162 (a), (c) and 165 of the Penal Code continue to be used to justify and excuse discrimination and violence towards persons on account of their real or perceived sexual orientation and gender identity and expression. This is against Chapter Four of the Constitution of Kenya. NGLHRC has gone to court with six human rights defenders (the petitioners), the Kenya National Commission on Human Rights and Katiba Institute to resolve this conflict of laws.

LATEST UPDATE: The joint petition was heard on February 22nd-23rd and March 1st, 2018. A mention scheduled for April 26th, 2018 on the matter was postponed. We are currently awaiting a new date from the court.


Petition 440 of 2013: Freedom of Association under article 36 of the Constitution of Kenya

This case regards the registration of NGLHRC as a non profit organisation, which had been denied by the government of Kenya. In April 2015, a three judge bench of the Constitutional Division of the High Court in Nairobi unanimously ruled that sexual orientation is protected from discrimination in the constitution of Kenya and ordered that NGLHRC be registered. The court further found that gays and lesbians are persons guaranteed of equal constitutional protection like every other Kenyan. The Board has since appealed this ruling and NGLHRC remains in the Courts over the matter. 

LATEST UPDATE: 

The NGO Board appealed the High Court's decision allowing NGLHRC to register, shortly after the judgement. The case was heard on July 18th, 2018. A judgement is expected on November 23rd, 2018.