Monday, December 9, 2019

Botswana appeals landmark pro gay High Court ruling

BY MPHO KELEBOGE

Government through the Attorney General has surprised pro gay activists by appealing a landmark decision of the High Court decriminalizing same sex relationships.

After the judgment, President Masisi voiced his support for the LGBT community, saying: “Just like other citizens, they deserve to have their rights protected”.

The High Court ruling was commended by gay activists worldwide as progressive and enjoyed the blessings of the United Nations.

In his intention to appeal the judgment, Attorney General (AG) Abram Keetshabe’s says he has thoroughly read the 132 pages long judgment and reached a conclusion that a panel of three judges were wrong in their conclusion to decriminalize same sex in Botswana.

“I have found it necessary in view of recent developments, concerning the above matter to release a statement on the position of the Attorney General regarding the decision of the High Court pertaining to the Constitutional challenge that Sections 164 (a), Section 164 (c) and Section 165 of the Penal Code (Cap 08:01, Laws of Botswana are declared ultra vires (beyond the powers) of the constitution in that they violate section 3 (liberty, Privacy and Dignity )section 9(privacy) and section 15(Discrimination)” argues Keetshabe.

Keetshabe said the brief facts of the matter which are common cause are that Letsweletse Motshidiemang  “a gay” person instituted an application in the High Court challenging the constitutionality of these sections with  Lesbians, Gays and Bisexuals of Botswana appeared as fried of court.

These provisions criminalize same sex sexual conduct between consenting adults and prescribe a maximum sentence of seven years imprisonment.

In his appeal Keetshabe begs to differ with the three judges being, Michael Leburu, Abednico Tafa and Jennifer Dube of Gaborone High Court.

The outcome of the Court of appeal decision remains to be seen as the President of the Country Mokgweetsi Masisi has declared his opinion that he is in support of the decision of the High Court.

In 2018, Letsweletse Motshidiemang, a student at the University of Botswana, filed a petition at the High Court questioning the constitutionality of Section 164 and other provisions of the law. His lawyers argued that they were dated, pointing to society’s growing acceptance of same-sex relationships as evidence.

In recent years, Botswana has made a number of strides for LGBT rights. The country has outlawed workplace discrimination based on sexual orientation, and in 2017, the High Court affirmed a transgender woman’s right to be recognised as female.

It remains to be seen whether or not the Court of Appeal will be constituted by a full bench to preside over the matter. 

The judgment was delivered by Michael Leburu and part of his words in delivering judgment, was that “Human dignity is harmed when minority groups are marginalized and that the ban was “discriminatory”.

“He further said, a democratic nation is one that embraces tolerance, diversity, and open-mindedness and that a societal inclusion is central to ending poverty and fostering shared prosperity. Judge Leburu further said “the state cannot be a sheriff in people’s bedrooms,”

The decision came as a major victory for lesbian, gay, bisexual and transgender (LGBT) activists in Botswana, who have long fought to decriminalize homosexuality.

Botswana is regarded as one of Africa’s most stable and democratic nations but homosexuality was outlawed under the country’s penal code of 1965.

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