The law is pitted against scientific evidence in a case in which the Attorney General’s Chambers is appealing a 2019 High Court decision which decrimanalised homosexuality.
In an effort to beef up its defence against the state, lawyers representing gays and lesbians (LEGABIBO) have filed two documents from the Ministry of Health and Wellness and the University of Botswana showing that the two approved a study on homosexuality in Botswana.
According to court papers, the University of Botswana wrote a letter to the Permanent Secretary in the Ministry of Health and Wellness seeking a permit on behalf of researchers who sought to conduct a study on homosexuals in Botswana.
The letter addressed the Ministry of Health, Assistant Director for Research Ethics, Office and Development Dr M. Kasule states: “I’m writing this letter in support of an application for a research permit by Drs. Alexandra Muller and Chelsea Morroni , adjunct lecturer at the Faculty of Medicine, University of Botswana. Drs Muller and Morroni have proposed to conduct a study titled “Evidence of LGBTI Mental Health and Wellness in 12 African countries; Participatory, Community-based needs Assessment.”
Kasule said the overall objective of the proposed study was to assess barriers to healthcare and specific health concerns among constituency populations of partner organisations.
Kasule further stated that “It is hoped that the findings of this study will benefit the LGBTI community by providing evidence of mental health status and concerns which could lead to improved health services available.”
The Office of Research and Development is satisfied with the process for data collection, analysis and the intended utilisation of findings from this research.
Replying on behalf of the Permanent Secretary in the Ministry of Health, one Ms S. Mosweunyane stated that “Your proposal has been reviewed and approved by University of Botswana Review Board.
She added that “Permission is therefore granted to conduct the above mentioned study. This approval is valid for a period of 1 year effective 17 August 2017.
“This permit does not however give you authority to collect data from the selected sites(s) without prior approval from the management. Consent from the identified individuals should be obtained at all times,” said Mosweunyane.
She said the research should be conducted as outlined in the approved proposal. Any changes to the approved proposal must be submitted to the Health Research and Development Division in the Ministry of Health and Wellness for consideration and approval.
“Furthermore, you are required to submit at least one hardcopy and an electronic copy of the report to the Health Research, Ministry of Health and Wellness within 3 months of complexion of the sturdy. Approval is for academic fulfillment only. Copies should also be submitted to all other relevant authorities,” said Mosweunyane.
Challenging the findings of the study that was approved by the University of Botswana and the Ministry of Health and Wellness, the Attorney General said, “with all due respect in this regard the Doctor’s academic contribution to this matter before the Honoruable Court neither alleges nor proves that any party has ever been charged or directly impacted by Section,164, 165 and 167.” The sections in question criminalise consensual same-sex sexual activities.
In her replying affidavit, social scientist , Muller said she “found that laws that criminalise consensual sexual activity between people of the same sex-which sections 164,165 and 167 of the Penal Code do contribute to prejudicial attitudes against lesbian, gay, bisexual, transgender and intersex persons in Botswana in the wider population.”
“These prejudicial attitudes are justified by the criminalisation of consensual same-sex sexual activities and manifest in several forms, including violence, discrimination in accessing civil services including healthcare and disparate health outcomes,” said Muller.
Apart from the much publicized Kanane Vs State in which the former challenged the legality of Botswana laws that criminalize homosexuality, cases of Batswana being charged with sodomy have not been publicized.
However in the amended replying affidavit of LEGABIBO Chief Executive Officer Anna Mmolai-Chalmers to Attorney General Abraham Keitshabe’s affidavit before the Court of Appeal, it emerged that three persons have been charged for committing unnatural acts under 164 of the penal code.
“In august 2016, the Gaborone Magistrate Court sentenced a man to three and one-half years’ imprisonment, two of them suspended, for committing “unnatural acts” under 164 of the penal code. I am advised and submit that the man was among 580 prisoners pardoned by President Khama as part of the 50th Independence Day celebrations in September 2016,” said Chalmers who is represented by Rantao Attorneys in the case.
She said empirical evidence further demonstrates that as long as laws that criminalise sexual activities between people of the same sex remain on the country’s statute book “the applicant and other men who have sex with other men are perpetually at risk of prosecution and other human rights violations.”
The high profile case which is expected to attract international human rights organisations is scheduled for hearing on the 12th October 2021 and “will be heard in the double court-High Court and the proceedings will be streamed live,” according to a letter dated 6th October 2021 addressed to lawyers representing the parties from the Registrar of the Court of Appeal, Nomsa Moatswi.