President Mokgweetsi Masisi has been dragged into a fierce legal battle between the Attorney General and lawyers representing the lesbian and gay community.
The legal exchange is contained fresh court papers in which the Attorney General has instructed former legal advisor to the President Advocate Sidney Pilane to challenge a decision of the High Court which struck down section 164 and 165 which criminalised sex between people of the same sex.
In his submission, Pilane argued that the High Court judgement had quoted a speech made by Masisi as part of the reasons it ruled in favour of a gay man who challenged section 167 that criminalises sexual activities between people of the same sex.
“The speech was concerned with domestic violence and the President was saying that gay people, like others also subjected to it and there was a need for them to also be protected,” said Pilane. He said the President cannot be construed, to have been critical of the provisions that criminalise sexual activities between people of the same sex.
“In Botswana, if there is any single individual who can repeal the impugned provisions in the most effective manner, it is the President,” said Pilane.
He added that “We have no doubt that was if his view is that the impugned provisions should be repealed it would have long been repealed.”
Turning to the views of experts and surveys, Pilane said though questionable whether they represent the views of the people of Botswana, no doubt any use that they might have would benefit the Government and Parliament in considering the fate of the provisions in question.
He accused the lower court of attempting “to rewrite the constitution of Botswana, to enable itself, with due respect usurp the legislative function of Botswana, disregarding completely authoritative injunctions to guard against that issued over time.”
But lawyers representing gays and lesbians movement, LEGABIBO argued that Parliament’s legislative functions do not preclude the courts’ scrutiny of laws.
“The role of our courts-as ultimate guardians of our Constitution, as it entitles minority groups such as members of the gay, lesbian and bisexual community, who do not have political power in Botswana to secure favourable legislation on their own, to challenge laws that infringe their fundamental rights and dignity,” the lawyers said.
They also submitted that the State must realise the constitutional rights of gays and lesbians to dignity fully. “Having the freedom to express one’s sexual orientation is fundamental to realising one’s dignity,” said Rantao Attorneys.
For their part, lawyers representing the gay man, Rockfall Lekgowe Law Group argued in their submission that the time has come to remove the gay man from the shadow of shame that it has condemned him for ages.
They also submitted that there is evidence that shows the approach and attitudes of the society in Botswana to accept homosexuality and homosexual practices in the country. The lawyers invited the court to some of the changes in the country such as the national policy on HIV/AIDS which recognises gays and lesbians as a vulnerable group that require special support.
The lawyers also told the Court of Appeal that there is legal recognition of organisations such as BONELA and LEGABIBO and Rainbow aimed at advocating for interests and rights of gays and lesbians.
