Landmark judgment affirms the rights to association and equality

General situation

On 16th October 2022, Kenyan President William Ruto announced that he had dissolved a police unit notorious for abductions and extra-judicial killings, in a move hailed by rights groups. The Special Service Unit (SSU), a specialised arm of the country’s Directorate of Criminal Investigations, had come into the spotlight in the latter years of former President Uhuru Kenyatta’s administration as cases of unexplained disappearances of people and extrajudicial killings of others increased, with bodies being found in the River Yala which is located in the country’s western region.

Association

On 12th October 2022, it was reported that the Director of Public Prosecutions, Noordin Haji, had announced that the directorate would withdraw all cases against human rights defenders who were unfairly arrested and falsely charged during past protests, evictions and the police operations. While speaking during a public forum organised by Amnesty International, Haji said that the police must operate within the law and vowed to have the activists’ cases expunged. Those hoping to be released included six men who participated in protest actions during an eviction exercise undertaken by police officers in Mukuru Kwa Njenga informal settlement in 2021. The six were falsely charged with robbery with violence, in a malicious case that was reported in multiple police stations. According to Amnesty International, at least 50 activists are arrested in Kenya every year for participating in peaceful protests.

On 4th January 2023, police reported that unknown assailants had murdered and dumped the body of Edwin Chiloba, a 24-year-old African LGBTQI+ rights activist, in a metal box in Kapseret, Uasin Gishu county. According to the government pathologist, Chiloba was smothered, leading to death by asphyxia.

Chiloba’s death, which many linked to his sexual orientation, sparked public outrage, with civil society groups and the public at large denouncing the murder and calling on authorities to bring those involved to justice. Twitter users went online under the hashtag #JusticeForEdwinChiloba to express growing concerns over increased attacks against members of the community. The police later arrested five people in connection to the murder. As has been reported in several Monitor updates in the past year, LGBTQI+ minority groups continue to face escalating homophobic attacks in the country, raising concern about the government’s perceived apathy towards ensuring equal protection for all.

On 17th January 2023, the Makadara law courts acquitted eight Human Rights Defenders (HRDs) of charges of creating a disturbance at Shauri Moyo Police Station. In 2016, police officers detained the HRDs for demanding justice for a minor violated by a station officer

In positive developments, On 24th February 2023, following a 10-year battle, a five-judge bench of the Supreme Court of Kenya confirmed the decisions of the High Court and Court of Appeal to permit the registration of the National Gay & Lesbian Human Rights Commission (NGLHRC) as an NGO, arguing it was unconstitutional and discriminatory to deny registration on the basis of the sexual orientation of the applicants.

The Supreme Court in its ruling said in part:

“Just like everyone else, [LGBTIQ+ people] have a right to freedom of association which includes the right to form an association of any kind.”

For a long time, the National NGO Coordination board that oversees registration of NGOs refused to register LGBTQI+ activists, and specifically refused to register NGLHRC because its name contained the words ‘gay’ and ‘lesbian’.

While human rights groups and activists lauded the ruling as an important development for human rights under the constitution, the new ruling was followed by fierce backlash from anti-LGBTQI+ groups, the clergy and individuals, including prominent political figures – the president included. President William Ruto criticised the ruling, on one hand saying that he respected the Court’s decision but in the same breath insisting that “Kenya would not allow same sex marriages”, and went ahead to implore the clergy to increase education on ‘traditional values’. Deputy President Rigathi Gachagua also criticised the ruling, terming homosexuality as ‘satanic’. Christian and Muslim clerics also criticised the decision, while the Attorney general announced that the government would challenge the ruling. Social media users took to Twitter to engage in conversations around the ruling, with homophobic content running for days after the ruling was made.

Members of Parliament condemned the ruling, with MPs such as James Nyikal saying that homosexuality goes against natural laws. Nyali MP Mohamed Ali tabled a motion calling for a total ban on discussion, publication and dissemination of information or material on LGBTQI+.

On 8th April 2023, MP Peter Kaluma submitted a severely draconian law to parliament, titled the ‘Family Protection Bill’ which would have far-reaching effects on members of the LGBTQI+ community and those who advocate for their rights, by placing severe limitations on their rights to privacy, assembly, expression and association, as well as on the sexual and reproductive rights of school children generally. The Bill imposes the death penalty on men found guilty of homosexuality, prohibits same sex marriage, limits recognition of sex to only male or female as assigned at birth while removing the freedom to reassign oneself, criminalises the promotion, funding and advocacy of LGBTQI+ related issues, and proposes the expulsion of refugees who identify as LGBTQI+. The Bill also prohibits the inclusion of comprehensive Sexuality Education (CSE) topics such as abortion, homosexuality, LGBTQ in school curricula.

In early March 2023, the Executive, through the Ministry of Education, further established a committee to look into the alleged infiltration of homosexuality in schools, whose role is likely to include reviewing school literature.

On 3rd February 2023, a Kenyan court issued a death sentence to former police officer Fredrick Leliman for the murder of a human rights lawyer with the International Justice Mission, Willie Kimani, in a case which sparked outrage in the country. The other three co-accused - two policemen and a civilian - were sentenced to between 20 and 30 years’ imprisonment.

Benson Shamala, the country director of International Justice Mission, said:

"No-one should experience what these three went through, especially from the same people mandated to protect them."

As previously reported on the Monitor, Kimani, a Kenyan lawyer working with the International Justice Mission, his client Josephat Mwenda and taxi driver Joseph Muiruri were abducted by police officers in June 2016 and found dead a few days later with their bodies showing signs of torture. Mr. Kimani had represented his client Josephat Mwenda in a case against a police officer who had unlawfully shot Josephat the previous year.

On 2nd March 2023, unknown individuals broke into the offices of Muslims for Human Rights (MUHURI) and stole valuable property including a laptop with “sensitive information”. MUHURI expressed concern that the robbery showed a pattern as their offices have been broken into three times. They reported the incident to the police and investigations are ongoing. MUHURI affirmed that the incident would not intimidate or deter them from doing their work.

Peaceful Assembly

On 21st February 2023, police used tear gas to disperse shirtless protesters and detained some demonstrators during a protest at Nairobi’s Parliament Road, on rising living expenses. The protesters staged a sit-in outside parliament and demanded to speak with national assembly Speaker Moses Wetang'ula, while also decrying the fact the National Assembly had deceived Kenyans by passing a law that resulted in increased taxes despite high inflation. The protesters tried to forcefully gain entry to the parliament precincts after the speaker failed to grant them an audience. The following day, a Kenyan comedian Eric Omondi and 16 other content creators were charged in court for taking part in an unlawful assembly, and freed on a cash bail of Sh10,000 (USD 73) each.

A few weeks after the Supreme Court’s positive ruling on the registration of NGLHRC ruling was made(see association section), plans to hold anti-LGBTQI+ demonstrations on 17th March 2023 across Mombasa, Lamu and Nairobi counties were announced. In the protests organised by Muslim, Christian, Hindu and the Bohora religious leaders, hundreds of protesters took to the streets in Lamu, located in Kenya’s predominantly Muslim coastal region, to denounce the Supreme Court’s ruling. Inter-denominational religious and youth leaders who led the protest called on the government to review the school curriculum which they accused of promoting homosexuality. In Mombasa, at least 80 members of the LGBTQI+ community left the County ahead of the protests in fear of their lives.

Expression

In early October 2022, Didacus Malowa, editor at Tuko, an online news channel, was sentenced to five days in jail without bail for contempt of court after failing to publish a public apology and retract an article which was allegedly misreported. The case involves a story he published about embezzlement of funds in the National Youth Service, which involved prominent political figures.

On 24th November 2022, Mwangi Muiruri, a journalist from the Nation Media Group, was assaulted by the Second Lady, Dorcas Gachagua’s security personnel at Muti village in the Ithanga sub-county, during a food donations drive. The security personnel confronted Muiruri while he was recording the Second Lady distributing food and confiscated his phone. During the confrontation they slapped him and attempted to arrest him. On 23rd February 2023, Deputy President Rigathi Gachagua accused Mwangi Muiruri of deliberately disrupting Kenya Kwanza functions. Gachagua claimed that the journalist had previously disrupted two of President William Ruto’s campaign functions in Murang'a county while he was deputy president. In a separate incident, on 27th February 2023, the Deputy President alleged that journalists were biased against him and were being paid by certain individuals to harm his reputation.

On 15th February 2023, the government ordered one of Nairobi's leading bookstores Text Book Centre, to stop selling a teen book titled 'What's Happening to Me?' The ruling follows a public outcry from parents with school-age children and religious leaders demanding that the government conduct a thorough market audit and prohibit gay-themed books. Parts of the book allegedly define lesbian and gay dating, and state that “it’s possible to fancy both boys and girls.” Religious clerks called on President William Ruto to protect teens from “so-called same-sex doctrine through books from Western countries.”

On 23rd February 2023, cyberbullies threatened sexual violence on Gloria Orwoba, a Kenyan Senator and politician, for protesting against period poverty (the inability to afford or access period supplies). This came after Orwoba attended and sat through a senate meeting in clothing stained with fake menstrual blood, which cyber bullies termed as violating the house's "dress code". Parliamentarians also demanded her ejection from the session, while online messages questioned her leadership, calling her actions "shameful." This incident provoked conversations about period stigma and access to menstrual cycles. According to the Ministry of health 2020 figures, approximately only 65% of women and girls in urban areas, and 46% in rural areas have access to disposable menstrual pads.