Explained: Implications of Supreme Court ruling allowing gay movement’s right of association

On Friday, 24 February 2023, the supreme ruled that “it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants”.

“Despite gayism being illegal (in Kenya), they have a right of association,” the ruling read.

In an interview with Family Media, pro-family Lawyer Charles Kanjama, who represented the NGO board in the case says the ruling is going to promote an action that is illegal and criminal in the penal code.

“If people associated calling themselves murderers or any other criminal action, it undermines public order,” he says.

The court ruling that you cannot discriminate on the basis of sexual orientation is another big concern for Kanjama because it means that all the laws that prohibit sexual orientation (being gay, lesbian, transgender etc.) will be struck down gradually. He described the decision as dangerous and harmful in regard to maintaining order in society and prohibiting sexual offences.

A statement from Kenya Christian Professional Forum (KCPF) says that the Supreme Court ignored the facts and context in which Kenyans enacted the Constitution.

The statement partly reads: “The Supreme Court reached an unsupported conclusion that sex in the constitution means sexual orientation rather than binary sexual identity as male and female (as clearly and correctly explained in the dissenting opinion of Justice Ouko).”

Laywer Kanjama

KCPF, which is chaired by Kanjama, further added that the court applied foreign judgments with discerning their material differences from the Kenyan context.

“Kenyans voted to adopt the new constitution based on their clear understating that LGBTQ activity was prohibited.”

Church reaction

Churches and religious leaders have also reacted to the ruling.

In a public letter, Bishop Calisto Odede of CITAM said:

“They stated that ‘Despite gayism being illegal (in Kenya), they have a right of association’. This rather contradictory ruling has left many of us wondering whether other illegal practitioners like paedophiles and those involved in incest also have right of association and if not, how different they are from homosexuals. And perhaps criminal organizations as well.”

CITAM recognizes that there may be many people who are struggling with different kinds of sexual desires but they have not gone to court for the whole nation to recognize them.

Apart the bible calling it sin, homosexuality is also contrary to the cultural norms of Africans.

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Bishop Calisto Odede calls on Kenyans of moral integrity to reject, resist and oppose this Supreme Court ruling as it will erode our societal norms and morals. “We call upon Christians and Kenyans of good will to stand out in opposition to this ruling and express their disagreement openly.”

Bishop Dr. Stanley Michael Michuki OGW, President Kenya National Congress of Pentecostal Churches called the day of the ruling the ‘saddest to our loving Nation Kenya’.

“This means our young men and women can choose to be members of homosexual or lesbian groups. This means men will marry men and women will marry women. We view this as a great danger to our future generation, this is a way to destroy our future as a Nation and this must be rejected by every Kenyan that values our Godly principles.”

Reuben Kigame took to his twitter to say:

“In a democratic nation like Kenya, public opinion is critical. The majority of Kenyans do not want LGBTQI legalized. It is an assault on the sanctity of the family, our identity and values.”

Is there an option of appeal?

Kanjama explains that the Supreme Court has the power to change its own decision through a review or when deciding a different case. “That’s when they can depart from a previous position but they don’t do that casually or quickly. It has to take time for them to be convinced to change their mind.”

A process like that can be initiated when people go before the court with a case.


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