Right to Equality and Non-discrimination: Freedom of Association of Sexual Minorities in Kenya

Abstract

Sexual minorities continue to face violation of their fundamental rights and freedoms despite significant development in codification of human rights. The primary purpose of this study is to examine the right to equality and freedom from discrimination of sexual minorities in Kenya in relation to their freedom of association. A desk study was carried out where existing literature and laws were examined. The first objective was to look at the underlying reasons for the discrimination that the sexual minorities face including political, religious and cultural views on sexual minorities. The other objective was to scrutinize the international and regional position on the fundamental rights and freedoms of the sexual minority. The last objective was to examine the rights in light of the Eric Gitari v. Non-Governmental Coordination Board & 4 others case.1 The research indicated that the sexual minorities in Kenya are unable to enjoy the constitutionally guaranteed rights and freedoms and continue to face discrimination because of their sexual orientation. The reluctance of the Non-Governmental Organizations Coordination Board to register an association that would allow the sexual minorities to have a platform to deliberate on their situation and advocate for their rights is one such violation. Religion and morals are often used as a justification to continue violations of the rights and freedoms of sexual minorities. To overcome this dire situation, the Government of Kenya and religious leaders should exercise caution when making statements relating to the LGBTI community. They ought to also inform the public that everyone is entitled to rights and freedoms under the Constitution. Parliament needs to be open to repeal all laws that contravene the Constitution and enact policies and laws that will ensure that the sexual minorities are able to enjoy the rights and freedoms like all other members of society. Courts play a fundamental role in bringing change and advancing jurisprudence. They therefore ought to understand the role they play and make judgements and implement interpretations that most favour the enforcements of rights and freedoms.