Nairobi — Opposition Leader Raila Odinga has faulted the Supreme Court ruling that paved way for the lesbian, gay, bisexual, transgender and queer (LGBTQ) community the rights to form a lobby group.
During a meeting with the Muslim Community Thursday, Odinga stated that the five-judge bench had overstepped its mandate in the separation of powers between the three arms of government by upholding non-existent laws.
He pointed out that without any proper legislation made on matters concerning the LGBTQ community, the Supreme Court had no role imposing the right for the embattled community to form a lobby group.
“Every arm of government has its own mandate. Parliament is the law-making organ and to ensure the government follows the constitution. The Executive mandate is to govern the people guided by the law,” he said.
“The Judiciary has the mandate to protect the existent law and that’s why those aggrieved on the context of the law move to the courts. It’s not their responsibility to create any law,” he said.
Odinga insisted that the jurisdiction of the Supreme Court is to protect the implementation of the existent laws in the country and incase of gaps they should give an advisory opinion recommending the bicarmel to legislate on such matters.
“What the judges should have done is to tell the gay community to go to Parliament. We are recommending Parliament to make laws in accordance with Article 45 so that we don’t have concerns on the issue,” Odinga said.
Proposed legislations
Homabay Town MP Peter Kaluma is seeking to sponsor a bill that would impose a life sentence on those convicted of engaging in homosexuality and other unnatural sexual acts.
The Penal Code prohibits same-sex relations and criminalizes acts of “gross indecency” and “carnal knowledge against the order of nature”.
The law stipulates a 14-year jail term for those found guilty of engaging in homosexuality.
“I’ve been receiving a lot of threats from people pushing this demonic agenda. I don’t care if they denied me access to travel to foreign countries,” Kaluma stated.
“I take courage on the fact on 3 judges out of five supported the decision. We are going to request the Supreme Court in their full bench of seven to review that decision,” the lawmaker stated.
Kaluma asserted that was not a coincidence that the shocking supreme court verdict was issued on a day that Jill Biden landed in the country for a three day visit.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
He linked the Ksh16 billion from U.S. Agency for International Development (USAID) for food assistance as bait to have the country support homosexuality, something that they will not allow.
“We cannot permit immorality expressly prohibited by our laws. It is interesting that the Supreme Court determination was issued when the US First Lady was coming. It is not coincidental that they are giving us Ksh16 billion,” Kaluma said.
Kaluma said that they will be going back to the Supreme Court for a review as the ruling was only backed by three judges.
Supreme Court Ruling
Deputy Chief Justice Philomena Mwilu, justices Smokin Wanjala and Njoki Ndung’u ruled in favour of the LGBTQ while justices William Ouko and Mohammed Ibrahim gave dissenting opinions.
The decision by the apex court followed an appeal arising form the Court of Appeal by the lesbian, gay, bisexual, and transgender (LGBT) had successfully challenged an appeal by the board against a favorable High Court decision.
The Supreme Court held the board violated the right to non-discrimination by refusing to accept the names proposed.
“The court was of the view that the appellant’s decision was discriminatory and that it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants,” the court ruled.
The court however pointed out that all persons, whether heterosexual, lesbian, gay, intersex or otherwise, will be subject to sanctions if they contravene existing laws, including Sections 162, 163 and 165 of the Penal Code.
