Attorney General Athaliah Molokomme failed to follow legal procedure and properly advise Minister of Labour and Home Affairs to register Lesbians, Gays and Bisexuals (LEGABIBO) as a society in 2012, as indicated in the Constitution of Botswana.
Even the minister did not escape unscathed in a hard hitting landmark judgement by a panel of five Court of Appeal Judges led by Court of Appeal President Ian Kirby. LEGABIBO won against government forcing her to register and recognise them as a society.
Kirby dismissed attorney General’s advice to the minister that homosexuality was illegal as invalid and misleading to the nation and the world.
“There is no legislation in Botswana that prohibits anyone from being lesbians, Gay or bisexual and it would be difficult to formulate any logical basis for doing so because sexual orientation has been defined and it is understood universally to refer to each person’s capacity for profound emotional, affection and sexual attraction to and intimate sexual relations with individuals of different gender or same gender or more than one gender.” said Kirby.
He said it was unacceptable for AG to say homosexual persons enjoy no fundamental rights at all.
“These in my view are totally unacceptable and irrational arguments. Fundamental rights are to be enjoyed by every persons. To deny any person his or her humanity is to deny such person human dignity and the protection and upholding of personal dignity is one of the core objects of Chapter 3 of the constitution of Botswana,” said Kirby.
The judge president stated that it was wrong for the Minister of Labour and Home Affairs who is responsible for registering LEGABIBO as a society to have a belief that the Organisation will promote the commission of criminal acts.
He said there was nothing unlawful in advocating for a change or changes in the law as seen by some politicians doing it every day on behalf of their constituents, advocating against criminalisation of abortion or against death penalty.
After the minister refused to register LEGABIBO, the 20 members of association approached the court for assistance. The members won at the High Court and the AG appealed the decision to the Court of Appeal where they lost with cost on Wednesday.
Justice Kirby agreed with High Court’s Justice Terrence Rannowane that the constitution is the supreme law of the land and any administrative acts that contravene any of its provisions are legally invalid.
Justice Kirby said the minister was wrong to utter some illegal claims that homosexual persons are not ‘’recognised” by the Constitution and that they are accordingly not persons entitled to the fundamental rights conferred.
He said parliament of Botswana has softened somehow on the questions of Gay and lesbians rights as evidenced by Employment Act Cap 47:07 to forbid the terminations of an employee’s contract on grounds of sexual orientation and also national Policy on HIV/AIDS as vulnerable groups requiring special support.
Justice Kirby further emphasised that some prominent politicians are supporting Gays and Lesbians and also advocating for abortions.
‘’This court, too, can take notice of a far more open public debate on these issues in recent years. While strong dissenting views are still expressed by religious and other groups, some prominent politicians have begun to speak out in support of gay and Lesbians rights,” said Justice Kirby.
Justice Kirby was referring to assistant Minister of Local Government Botlogile Tshireletso who had told this publication that she supports the Court of Appeal Judgment.