The High Court has barred incitement against the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community.
The temporary orders were issued in a case where anti-LGBTQ activists and Nyali Member of Parliament, Mohamed Ali, are accused of inciting members of the public to carry out extra-judicial killing or harm people identifying themselves as members of the said community.
The order by Justice Olga Sewe also restricts anti-LGBTQ activists from calling for the expulsion from the country of LGBTQ-identifying persons or the closure of organisations serving the LGBTQ community.
“In the interim, conservatory orders to issue in terms of prayer three of the notice of motion to preserve the status quo pending the hearing and determination of the petition,” ruled Justice Sewe.
In its petition, the Centre for Minority Rights and Strategic Litigation (CMRSL), alongside Mr JM, who is an advocate for the health and human rights of LGBTQ persons, sex workers and people living with HIV, also wants a declaration that LGBTQ citizens are entitled to protection under the constitution, their sexual or gender orientation notwithstanding.
CMRSL wants an order issued prohibiting anti-LGBTQ activists and Nyali MP Mohamed Ali from calling for extra-judicial killing or harming of LGBTQ-identifying persons or their allies.
It also wants a declaration that Mr Salim Said, Athman Ahmed, the anti-LGBTQ movement and the Nyali MP are in breach of the constitution concerning their anti-LGBTQ demonstrations.
The judge further directed the respondents to file and serve their responses to the petition within seven days.
CMRSL and JM claim that Messrs Said, Ahmed, Ali and the anti-LGBTQ movement marched on the streets in Mombasa and later held a rally at Makadara grounds where they called on the public to kill LGBTQ-identifying individuals by Biblical and Sharia law.
They further claim that the respondents threatened to deal with and close down organisations offering services or working for the welfare of LGBTQ-identifying individuals.
“The fifth respondent (Mr Ali) in particular while addressing the assembled marchers called for the killing and expulsions from Kenya of LGBTQ identifying persons,” part of the amended petition states.
Apart from Messrs Said, Ahmed, Ali and the anti-LGBTQ movement, the Inspector General of Police is also a (first) respondent to the petition.
The National Commission on Human Rights, Amnesty International-Kenya, Kenya Human Rights Commission and the National Cohesion and Integration Commission (NCIC) are listed as interested parties.
The petitioners claim that despite the criminal acts of the (second to fifth) respondents, concerns raised by CMRSL, human rights organisations and NCIC, the IG has been allowing or intends to allow anti-LGBTQ demonstrations unless restrained by court.
The petitioners claim that the activities anti-LGBTQ movement have led to gross human rights violations against the LGBTQ community and their allies in the country.
The petitioners also want a declaration that the right to assemble, demonstrate, picket and present petitions to public authorities is not available if the participants in the demonstrations intend to breach the constitution.
“These groups coalesced themselves into a national movement calling itself ‘Anti LGBTQ Movement’ who have since then driven a relentless campaign of hate calling for violence, elimination and expulsion of LGBTQ population from the country,” part of the petition states.
The petitioners argue that religious and political leaders of the group mobilised rallies and marches protesting a ruling, spreading misinformation and hate speech against the LGBTQ community and online bloggers and celebrities made inflammatory statements.
They say that on March 17, the Anti-LGBTQ Movement organised and held demonstrations and marches against the LGBTQ community, which were held in several cities and towns and were (marches) characterised by extreme homophobic hate speech and incitement to violence.
“These activities of anti-LGBTQ Movement have led to a surge in homophobic attacks in the country with LGBTQ persons facing confrontations from landlords, employers and community members,” the petition states in part.
It adds that organisations serving the LGBTQ population reported over 100 cases of violence, forced displacements and denial of services.
