Freedom and justice are central to the very existence of
Botswana and are enshrined in the laws that govern the country. A local minority group, Lesbians Gays and Bisexuals of Botswana (LEGABIBO) has posed a question through the High Court, asking if indeed all persons, irrespective of ethnic origin, gender, possessions, race, religion and so on are treated equally and without prejudice in this country.
The matter dates back to 16th February 2012, when 17 individuals applied for LEGABIBO to be legally recognized as a society by the Registrar of Societies. Their application was rejected a few days later on the basis that the Botswana Constitution does not recognize homosexuals. Another reason given was that the objectives of the organization are contrary to section 7(2) of the Societies Act.
LEGABIBO then launched an appeal with the Minister of Labor and Home Affairs, who also rejected their application. The organization then filed a case before the High Court of Botswana, seeking a review of the Ministry’s refusal to register it as a society. They won the case on 14th November 2014, when the High Court declared that the Minister’s decision reject their application for registration was contrary to sections 3, 12 and 13 of the Botswana constitution. The court further declared that LEGABIBO is entitled to registration as a society. Government, through the Attorney General appealed this decision and the matter was heard on Friday in Gaborone.
The outcome of the appeal may have serious implications for Botswana, as some amendments will have to be made to the country’s Penal Code to accommodate lesbians, gays and bisexuals. The organization sees the court case as one that will determine whether they will get to enjoy their freedoms and rights without prejudice.
On the other hand, government has maintained that the constitution of Botswana does not recognize homosexuals. Government attorneys argued in court that LEGABIBO could be used for unlawful purposes that are prejudicial to or incompatible with peace, welfare or good order in Botswana. It also believes that registering a lesbian, gay and bisexual organization will popularize acts criminalized in terms of the Penal Code. But Cain Youngman of LEGABIBO believes government’s contention is flawed because his sexual orientation and his behavior are two different things.
“My individual sexual orientation is not my choice; my sexual behavior and orientation are two completely different things. Look, no one is asking to be given the platform to display any kind of sexual behavior,” he said.
He believes the constitution of Botswana, while at times seemingly protecting the rights of citizens, simultaneously fails to protect the very people it deems vulnerable.
“We are just a minority group who were born and grew to become like we are. We were brave to come out and admit it. We acknowledge that this is of great concern in so far as our culture goes. We still humbly ask that our government considers what happens in other countries where being a homosexual is tolerated and how robust these communities are,” said.
The main issue that the court will grapple with during the appeal is the meaning of freedoms of expression, association and assembly. Acting for LEGABIBO, attorney Dick Bayford argues that these are summed up as the right to express one’s ideas and opinions freely through speech, writing and other forms of communication but without deliberately causing harm to others.
“Essentially that is what the group of individuals coming together as LEGABIBO are asking the High Court to hear them out about against the state.” Judgment will be released on a date to be announced.
