A local gay rights group has rejected a legal advice by the State that it should lobby Parliament instead of approaching the courts in an effort to amend laws that criminalise same sex sexual acts.
Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) which is cited as a friend of the court in a case in which a gay man is challenging the legality of sections 164 (a) and (c) and 165 of the Penal Code of Botswana that criminilise same sex sexual acts rejected the advice by the Attorney General Chambers.
In response to the relief sought by the Applicant (who cannot be named for legal reasons), the Attorney General Chambers advised that the Applicant or any other person who wishes to change the sections that criminalise same sexual acts should lobby Parliament instead of approaching the court.
In its heads of argument, LEGABIBO states that “The State seems to suggest that if the Applicant is ‘offended’ by or seeks to impugn any law, then he should approach Parliament to challenge the offending provisions instead of approaching this court.”
Through its lawyers, Rantao and Kewagamang Attorneys, LEGABIBO said that “This argument, we submit, runs counter to our constitutional framework and should be rejected. The function of Parliament is to enact laws within the confines of the Constitution for the good governance of the people.”
Where there is clear evidence of constitutional violations, LEGABIBO said, the Court of Appeal and High Court have always shown their willingness to react and enforce constitutional values, protect the interests of the marginalised and affirm fundamental basic rights and dignity.
“The role of our courts-as ultimate guardians of the Constitution-is vital, as it entitles vulnerable groups and political minorities such as members of the lesbian, gay and bisexual community, who do not have political power in Botswana to secure favourable legislation on their own, to challenges laws that infringe their fundamental rights and dignity,” said LEGABIBO.
LEGABIBO’s lawyers said compelling evidence has been presented before the court establishing separate rights violations of the Constitution.
“In particular, the evidence placed before this Honourable Court demonstrates that the criminalization of the sexual acts in sections 164 (a) and (c) and 165 of the Penal Code of Botswana perpetuate stigma, prejudice, violence and discrimination against lesbian, gay, bisexual and transgender people on the grounds of their actual or perceived sexual orientation and gender identity,” the lawyers said.
The lawyers submitted that if the court determines that a prima facie case of a constitutional rights violation has been established, then the court is required to engage in a justification analysis.
“That is: the law must be justified as being in the public interest or protecting the rights and freedoms of others,” the lawyers stated.
The lawyers also noted that the court is not bound by the Kanane case insisting that the present case is distinguishable from the Kanane case. The Kanane case was the leading authority to date in the country on gay and lesbian rights, as two consenting males had been charged in 1994 with committing in private an ‘unnatural’ offence contrary to section 167 as read with section 33 of the Penal Code.
“Fifteen years have passed since the Kanane case and our society has not remained stagnant. In relation to LGBT (lesbian, gay, bisexual, and transgender) persons, our views, values, perceptions and awareness and understating of diversity has since changed and developed over time. Perhaps most demonstrative of this change is the acknowledgement in government documents that criminalization of same sex-sexual relationships has negative health effects on LGBT persons in Botswana, something that was virtually unheard of in 2003,” LEGABIBO said.
The gay group pointed that since Kanane’s appeal was heard in 2003, there have been compelling evidence-based studies, factual findings and legislative and judicial developments which are relevant for the determination of the present case and demonstrate that the two cases are distinguishable.
“In particular, the evidence presented before the Honourable Court-that was not before the Court in Kanane ÔÇôshows that that lesbian, gay and bisexual persons are a particularly vulnerable group deserving of protection: the expert evidence of Professor Alexandra Muller and supplementary affidavit of Maithamako Anna Mmolai demonstrate that continued criminilasation of same sex has a negative and disproportionate impact on the lives and health of LGBT persons and in particular, public health more broadly,” said LEGABIBO.
