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Kenya Supreme Court declares discrimination of persons based on sexual orientation unconstitutional – JURIST

The Supreme Court of Kenya Friday declared discrimination against the LGBTQ community unconstitutional and affirmed their right to association after a 10-year legal battle. In a 3-2 majority decision, the court ruled that article 27 of Kenya’s Constitution—which protects every person from discrimination with an open-ended list of grounds—protects sexual minorities as well.The court said:…[a]n interpretation of non-discrimination which excludes people based on their sexual orientation would conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination. To put it another way, to allow discrimination based on sexual orientation would be counter to [the] constitutional principles.Through a wider interpretation of the term “sex” under article 27, the court declared that sex should not be interpreted in the strict sense. The majority decision stated:…[t]he use of the word “sex” under Article 27(4) does not connote the act of sex per se but refers to the sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise. Further we find that the word “including” under the same article is not exhaustive, but only illustrative and would also comprise “freedom from discrimination based on a person’s sexual orientation.”Justices Ibrahim and Ouko (dissenting) took issue with the majority decision by stating that if Kenyans wished to include “sexual orientation” under article 27, they would have done so during the drafting of the constitution in 2010. This decision comes at a time when there is agitation for a “third wave of criminalization of homosexual” through anti-sodomy laws in Africa. For instance, a member of parliament has written to parliament communicating his intention to table a bill prohibiting homosexuality and the promotion thereof.