On Wednesday March 16th, the Court of Appeal will deliver judgment in a case in which the government of Botswana was challenging a High Court ruling that its refusal to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was unlawful.
LEGABIBO has been fighting tooth and nail to have their association registered by government and the High Court ruled in their favor, only for government to appeal the ruling at the CoA. Last Tuesday LEGABIBO received notification from the CoA that judgment on the appeal will be delivered on Wednesday 16th in Gaborone. Botswana’s gays, lesbians and transgender community have been fighting to be allowed to enjoy their rights and freedoms for several years and they are hoping that the CoA will rule in their favor on Wednesday.
“We are not lobbying for government to support same sex intercourse. We just want to enjoy our rights to equality, freedom of expression and freedom of assembly and association,” said LEGABIBO Coordinator, Caine Youngman during a press briefing on Monday.
LEGABIBO attorney, Lesego Nchunga of Dow and Associates said government’s decision to refuse registration of LEGABIBO was unreasonable and irrational.
“Government failed to apply its mind in this case, and instead misconceived the provisions of the Constitution and applied irrelevant considerations based on errors of law and unsubstantiated assumptions. The decision was also unlawful because it violated our clients’ constitutional rights,” said Nchunga.
She said Section 3 of the constitution provides that every person in Botswana is entitled to their fundamental rights and freedoms, including the right to equal protection of the law.
“This means that administrative decisions should not be exercised in a manner which is unfair and discriminates between different classes or groups of people,” she said.
For his part, Youngman also said there is no evidence that suggests 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 will not serve any substantial government interest. The state has provided no legitimate justification as to why our rights need to be violated,” said Youngman.
He further said government’s arguments against registration of LEGABIBO are not supported by the constitution.
“Even if the court does not rule in our favour we will still continue with the advocacy work and information sharing. We will also need to go back to the drawing board to consider our next move which might lead us to register a trust,” said Youngman.