Kenya’s highest court on Tuesday dismissed a challenge to its February ruling that allowed the National Gay and Lesbian Human Rights Commission to register as a non-governmental organization. 

The Supreme Court established the petitioner, opposition MP Peter Kaluma, is not an aggrieved party to its ruling since he was never involved in the case under rules that govern case hearings.  

Kenya’s NGO Coordinating Board refused to register NGLHRC for more than a decade on grounds that it promotes same sex behavior, which the country’s penal code criminalizes. 

The February ruling sparked heated criticism from Kenyans, clerics and politicians against the Supreme Court judges and demanded it be reversed. The decision prompted Kaluma, who is a fierce critic of homosexuality, to challenge it in March and demand the term “sex” be redefined to exclude same sex practices.  

The MP has sponsored a stiffer anti-homosexuality bill that awaits introduction in the House of Representatives.

The Parliamentary Budget Office has already considered the bill’s financial costs to the government. The measure is currently pending before the Social Protection Committee, which will consider its implications for Kenyans.  

The Social Protection Committee was to consider the bill within a month as House rules requires, but the period is now three months. Kaluma has confirmed to the Washington Blade that he wrote to National Assembly Speaker Moses Wetangula two weeks ago to complain about the committee’s delay.

While challenging the Supreme Court’s ruling, Kaluma in his petition argued it misinterpreted the term “sex” under Article 27 (4) of the Kenyan Constitution by “referring also to sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise” not to be discriminated based on sexual identity.  

Kaluma claimed the court’s ruling “usurped the sovereign power of the people” and it was “obtained through fraud, deceit and misrepresentation of facts” by the NGLHRC defendants, which are some of the grounds the court can consider when it reviews its decision. The court, however, dismissed his petition because it failed to substantiate the claims and he was not a party to the case when it was heard and when the judges issued their ruling.

“The court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties,” court noted. 

The ruling cited Article 163 of the constitution and subsequent procedural laws that allows the court to only consider a challenge of its ruling from an aggrieved party to the case.

Eric Gitari, who is NGLHRC’s former executive director, also filed a motion in opposition to Kaluma’s petition on grounds that “it is frivolous and without merit” because he wasn’t a litigant in the case. Gitari had also warned the court against entertaining the petition for being “procedurally irregular” and that it would undermine the court’s authority and the finality of its proceedings.   

Anti-LGBTQ crackdown continues, MPs challenge PEPFAR funding

Although the court’s latest verdict affirming its initial decision for NGLHRC to be registered as an organization is a reprieve for Kenya’s LGBTQ community, all eyes are now on Attorney General Justin Muturi. He has vowed to challenge the NGLHRC ruling on behalf of the government. 

Muturi’s anticipated move to have the judges review the ruling is part of efforts to crackdown on consensual same-sex sexual relationships the constitution does not recognize and Section 162 of the penal code outlaws.

A group of 10 Kenyan MPs and religious leaders in June in a letter to the U.S. Congress said President’s Emergency Plan for AIDS Relief funding to Kenya no longer serves its original purpose of fighting HIV/AIDS because it supports homosexuality and abortion. The letter — titled PEPFAR and African Values — went to several members of the U.S. House of Representatives and the U.S. Senate.

“We wrote that letter to the U.S. Congress not to stop PEPFAR funding to Kenya, but to demand the initiative to revert to its original mission without conditioning it to also supporting LGBTQ as human rights,” reads the letter that Kaluma signed.

Kaluma called on Congress to pressure the Biden-Harris administration to reverse policies and executive orders that condition U.S. funding to developing countries with recognition of LGBTQ and intersex people against what the MP said is the will and cultural beliefs of beneficiary nations.

Kenya expects to receive more than $341 million in PEPFAR funding for the 2023-24 financial year. The current funding period ends on Sept. 30. 

Republicans last month seized upon the letter addressed to Congress and demanded the suspension of PEPFAR funding to Kenya for the upcoming fiscal year. Some Republican lawmakers have also sought to stop the U.S. Agency for International Development from funding LGBTQ and intersex rights efforts around the world.