Following a decade of litigation, on 24 February 2023 the Kenyan Supreme Court ruled that it would be unconstitutional to limit the right to freedom of association on the basis of sexual orientation. The applicant, a Kenyan gay man, was denied registration of his organisation set up to advocate for LGBT human rights. The Supreme Court correctly found that limiting the right to freedom of association in this way would 'conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.'
As the former president of the European Court of Human Rights, this finding does not come as a surprise to me. The Supreme Court’s judgment is fully in line with international human rights norms and should be enthusiastically applauded. The apex court’s adherence to human rights also stands in stark contrast to developments in neighbouring countries, such as the Ugandan parliament’s passing of the abhorrent Anti-Homosexuality Bill 2023 in late March.
As Lady Hale, the former president of the Supreme Court of the United Kingdom, once stated in a judicial opinion: 'Democracy values everyone equally, even if the majority does not.' It is anathema to inclusive democracy and human dignity to discriminate against people on the basis of their sexual orientation. Indeed, as the European Court of Human Rights made clear most recently in the Grand Chamber judgment in Macaté v. Lithuania (23 January 2023): 'equal and mutual respect for persons of different sexual orientations is inherent in the whole fabric of the Convention'. This standard of human rights protection is universal and has now been properly enforced by the Kenyan Supreme Court.
Kenyan MPs, religious leaders and senior members of government have reacted with uproar against the Supreme Court’s judgment. Indeed, applications have been made to the Supreme Court to review its decision on the basis, inter alia, that it is contrary to the morals held by Kenyan society. There is no basis for reviewing the judgment based on such arguments, which would question the very bedrock of the rule of law and faith in the country’s historic 2010 constitution. In international human rights law, the basic premise is that the rights of minority groups cannot be made conditional on their acceptance by the majority. It is the essence of guaranteeing individual human rights in a constitutional democracy.
Having rendered a judgment which is perfectly in line with settled international human rights standards, I am confident that the Kenyan Supreme Court will hold strong and not allow itself to be buffeted by the winds of politically motivated challenges to its judgment.
Robert Spano is former president of the European Court of Human Rights. He is partner at Gibson, Dunn & Crutcher and visiting-professor of law at the University of Oxford
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