Gays enlist Dow to sue govt for non-recognition
by Khonani Ontebetse
Gays who are members of the Lesbians, Gays and Bi-sexuals of Botswana (LEGABIBO) have engaged former High Court and Human Rights activist Unity Dow of Dow and Associates in attempt to force the government to recognise their association.
The 14-individuals who filed the case are pleading with the High Court to review the decision by the Director of Civil and National Registration and the Minister of Labour and Home Affairs to refuse to register the LEGABIBO.
The case is supported by the Southern Africa Litigation Centre and the Botswana Network of Ethics, Law and HIV/AIDS (BONELA) and the Attorney General is cited as the 1st Respondent.
The applicants say the refusal to register LEGABIBO violates their right to form and join an association.
The Applicants seek judicial review of the decision to refuse to register LEGABIBO, on the basis that such refusal was irrational and illegal; the decision was illegal in so far as it transgressed the rights provisions in the Botswana Constitution.
“The decision was irrational because the Director and Minister failed to apply their minds to the question whether to register LEGABIBO, and instead misconceived the provisions of the Constitution, and failed to consider the provisions of the Societies Act,” said the applicants.
They argue that the Director and Minister did not substantiate the refusal to register LEGABIBO.
“There is no evidence or suggestion that LEGABIBO’s objectives are likely to be used for any unlawful purpose prejudicial to or incompatible with peace, welfare or good order in Botswana. The denial of registration does not serve any substantial government interest,” state the applicants.
The refusal to register LEGABIBO, say the applicants, without any reason for such decision, suggests that the decision is based on moral disapproval of the objectives of LEGABIBO.
“Such reasoning has been rejected by courts as irrational and misplaced in a democratic society which has as its founding principles the notion of tolerance, diversity and pluralism,” the applicants say.
They contend that the right to equal protection of the law means that administrative decisions should not be exercised in a manner which is unfair and discriminates arbitrarily between different classes or groups of people.
“None of the rights in the Botswana Constitution is limited based on sexual orientation. The rights are universal in application and can only be restricted if this is reasonably required in the interests of defence, public safety, public order, public morality or public health. Any limitation of the rights in the Constitution must be reasonably justifiable in a democratic society,” say the applicants.
They say there is further no law in Botswana that prohibits anyone from being a lesbian, gay or bisexual person, nor is there any law which detracts from their fundamental rights.
“The inclusion of protection from discrimination based on sexual orientation in Botswana’s national laws and policies shows that the Botswana government does not seek to discriminate against people based on their sexual orientation,” the applicants say.
There is accordingly, the applicants say, no basis on which to argue that a lesbian, gay or bisexual person may not form or join an association which seeks to promote his or her specific interests,
“The refusal to register an organisation denies a person’s right to self-determination and freedom of choice. The denial of registration on purely discriminatory grounds amounts to degrading treatment which violates the right to inherent dignity of every person,” state the applicants.
Once registered, LEGABIBO says it aims to provide an opportunity for lesbians, gays and bisexuals to form part of an association which will provide them with information on human rights and advocate for their rights, particularly the right to access health services.