High Court Justice Terrence Rannowane in a ground breaking decision on Friday ruled that members of a lesbian, gay, bisexual, and transgender (LGBT) rights group could formally register their organization. The decision followed a petition filed byLEGABIBO to register under the Botswana Societies Act. The Botswana registrar of societies Neo Lepang rejected the group’s request to register in March 2012.
Justice Rannowane said Labour and Home Affairs Minister Edwin Batshu and Registrar of Societies refusal to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was unlawful.
The judge said he had examined the objectives of LEGABIBO with a view to finding out if any of them offends against Section 7 (2) (a) 0f the Society’s Act. He said all of the objectives appear to be quite harmless and in fact promote good values such as the promotion of culture of self reliance, promotion of human rights of all people without discrimination, support of public health interest of members and education on the general public on issues of human rights. “I have taken a few of these objectives randomly to demonstrate that they do not offend against Section 7 (2) (a) of the Society’s Act,” said Justice Rannowane. The section in question states that “the Registrar shall refuse to register and shall not exempt from registration a local society-where it appears to him that any of the objectives of the society is or likely to be used for unlawful purpose, no prejudicial to, or incompatible with peace, welfare and good order in Botswana.” Justice Rannowane said he picked out article 4.5 of the objectives of LEGABIBO for a closer examination because it is the one which influenced the authorities to refuse the registration of the society. The article states that “to carry out political lobbying and discrimination of same sex relationships.”
The judge observed that there is inherently nothing sinister or unlawful about the process of lobbying or advocacy. It is in fact common in many democratic countries that lobby groups for various courses operate freely for courses such as discrimination in certain circumstances, discrimination of consumption of drugs (such as marijuana) discrimination of prostitution. Rannowane said such lobby groups’ basic aim is to campaign or persuade the powers that be to embark on legislative reforms that would make it lawful for particular conduct to be lawful. Advocacy for legislative reforms need not only be about discrimination, it may also be for example about, putting in place laws to protect the environment, minority languages and culture, minority groups and endangered species. Registering a society for the purposes of lobbying of legislative reforms to make same sexual relationships legal is therefore not illegal is therefore not a crime neither does it give any appearance of being “likely to be used for unlawful purpose, no prejudicial to, or incompatible with peace, welfare and good order in Botswana.”
Justice Rannowane said what would clearly offend against the said section would be to engage in same sex relationship. “But it is important not to read into the objectives meaning some of the words that are not justified in these objectives. The application by LEGABIBO is not for the registration of the society for the purposes of having same sex relationships rather for agitating for legislative reforms so that same sex relationships would be decriminalised,” said Rannowane. He said in a democratic society, asking for a particular law to be changed is not a crime, neither is it incompatible with peace and good order. The other ground for refusing recognition was that the Constitution does not recognise homosexuals. This assertion, the judge found, is not correct.
“There is no provision of Botswana Constitution that expressly states that it does not recognise homosexuals. Likewise there is no provision in the Constitution that says that it recognises heterosexuals. It is not a crime for one to be attracted to people of one’s own sex and this has nothing to do with the constitution,” said Rannowane. The decision to refuse to register the society, he said, was therefore clearly wrong because it was based on presumption that its objectives were to engage in homosexual relationships when as a matter of fact, the objectives were to lobby for legislative reforms to make it lawful to so engage. Setting aside the decision by the Registrar of Societies Justice Rannowane said “In my opinion there is a world of difference between engaging in a prohibited conduct and lobbying for that conduct to be decriminalised. The first one is unlawful while the latter is not.
This means that the Director refused to register a society whose objective was to engage in a lawful exercise of among others lobbying for legislative reforms and dissemination of information on matters such as health issues to its members.” In upholding the application by LEGABIBO Justice Rannowane said that freedoms of association, assembly, and expression are important values of society, and that the “enjoyment of such rights can only be limited where such limitation is reasonably justifiable in a democracy.” The decision continued: “The objects of LEGABIBO as reflected in the societies’ constitution are all ex facie lawful. They include carrying out political lobbying for equal rights and decriminalization of same sex relationships.”
He declared that the group is entitled to have the group Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) registered as a society.
