Gays win big

“It is not, however, and never has been a crime in Botswana to be gay” - Judge Ian KirbyOpposition parties hail victory 

‘Gays and lesbians are going to hell’-Pastors

It was tears of joy for members of Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) when the Court of Appeal Judge President Ian Kirby ordered the Minister of Labour and Home Affairs to register them as a society.  

Government and LEGAGIBO have been locked in a protracted battle for the past four years over the former’s refusal to register LEGABIBO on grounds that Botswana’s Constitution does not recognise homosexuals, and that registration would violate section 7 (2) (a) of the Societies Act. The Act states, “The Registrar  shall refuse to register and shall not exempt from registration a local society where - (a)  it appears to him that any of the objects of the society is, or likely to be used for any unlawful purpose or any purpose prejudicial to or incompatible with peace, welfare, or good order in Botswana.”

LEGABIBO dragged the minister to the high court in March 2013 saying his decision to refuse to register them contravened section 12 of the constitution of Botswana in the enjoyment of their freedom to assemble and associate. In November 2014, Gaborone high court judge Terrence Rannowane delivered a judgement in favour of the society saying it was not correct that the constitution does not recognise homosexuals. “The refusal was also unlawful, as it was in breach of section 3 12 and 13 of the Constitution, relating to equal protection of the law, freedom of expression and freedom of association,” said Justice Rannowane. The government then went on to appeal the judgement. When dismissing the appeal application, CoA President Kirby said the minister’s refusal to register LEGAGIBO was unconstitutional. “I think it is clear, as Rannowane J. found that there is nothing unlawful about advocating for a change or changes in the law. That is the democratic right of every citizen. Politicians do it every day on behalf of their constituents. Advocacy against criminalisation of abortion, or against the death penalty are typical examples,” said Kirby adding that there is no suggestion nor should there be that those advocating for such a change are potential abortionists or murderers themselves.

According to Kirby, LEGAGIBO’s intention is to advance the interests of gay, lesbian and trans-sexual persons in Botswana and generally to educate the public on human rights aspects of sexual orientation. “They are concerned with public health issues, such as HIV/AIDS, and seek to enable members of their community to protect themselves and others from violation of their human rights. That cannot, in my view, be seen as encouraging illicit same sex sexual relationship,” noted Kirby.

He also said members of LGBTI community are as vulnerable as anyone else to the dangers of rape or sexual violation, and the protection of prison inmates from HIV infection is a concern expressed in the National HIV/AIDS policy.  “The real question is whether there is anything unlawful or offensive about advocating for a change in these laws so as to decriminalise the forbidden aspects of same-sex relationships. It is not, however and never has been a crime in Botswana to be gay,” he said.

Kirby also said LEGAGIBO seeks to network regionally and internationally to promote their interests and also to be an advocacy group to lobby politically “for equal rights and decriminalisation of same sex relationships.”

“The respondents have made it clear that they respect the law, and there is no suggestion whatever in the objects of LEGAGIBO that they will encourage their  members to commit offences against sections 164 or 167, or they will indulge in “outreach,” to use the expression of the appellant’s counsel, to recruit others to commit such offences,” he said.

According to Kirby, the minister based his refusal to register LEGAGIBO on his belief that the objects of LEGAGIBO were to promote the commission of criminal acts by its members. Speaking in an interview after the judgement, an overjoyed BONELA Director, Cindy Kelemi said, “We are very excited that the court of appeal finally ruled in our favour that LEGAGIBO has the right to register as a society within the framework of Botswana constitution. We are happy by the reasons advanced by court that the constitution of Botswana does recognise homosexuals and does not explicitly talk about heterosexuals but all people regardless of sexual orientation.”

She added, “We are excited that LEGAGIBO is going to contribute in ensuring that we eliminate HIV/AIDS in Botswana. The court held that being gay or lesbian is not unlawful in terms of constitution of Botswana. So everybody is free to express who they are in terms of sexual orientation. Now LGBT has a space to occupy in Botswana and therefore they have the freedom to showcase who they are.”

Sharing the same sentiments, Programme Lawyer at Southern Africa Litigation Centre, Tashwill Esterhuizen said it was good news that gays and lesbians will be recognised in Botswana. “This is great because individuals will freely associate with each other. Even if the views are in popular amongst majority, the court has reaffirmed that the right to association is such an important right in democracy. The ability to share opinions in a collective manner and to campaign for human rights is important and all governments have a duty to protect the right to freedom of association,” he said.

Caine Youngman, LEGABIBO Advocacy and Awareness officer who has been a part of the registration process from the beginning said that, “The win gives us hope, faith and belief in Botswana’s legal system. It has been a very long and exhausting 11 years since we first started the journey to have our organisation registered.”

The European Union Delegation to Botswana, the British High Commission, the French Embassy and the German Embassy welcomed the ruling of the Court of Appeal in a joint press statement. “In reaching this verdict (following the High Court decision earlier) Botswana’s courts have endorsed the fundamental freedoms of expression and of association enshrined in the Botswana constitution as well as set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to which Botswana is a State Party.”