Sunday, October 25, 2020

New Employment Act recognises sexual orientation

Unknown to very many people, gays and lesbians scored a major victory some six years ago that somehow didn’t attract media coverage.

A fortnight ago, Gaborone North MP, Haskins Nkaigwa, said that in today’s Botswana all the good jobs – especially in the corporate sector – are going to gays and lesbians. The Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) took umbrage at that statement, with its Advocacy Officer, Caine Youngman, saying that the law ÔÇô notably the Employment Act, doesn’t discriminate against gays. Not only does the law not do that, it states through an amended clause (and in explicit terms) that such discrimination is unlawful. In the original Act, Section 23 merely states that an employer shall not terminate the contract of employment on grounds of the employee’s race, tribe, place of origin, national extraction, social origin, marital status, political opinions, sex, colour or creed.

In the Employment (Amendment) Act 2010, Section 23 has been reworked to say that an employer shall not terminate the contract of employment on grounds of the “employee’s race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour, creed, health status or disability.” The Act inserts a new paragraph that says that that an employer shall not terminate the contract of employment on grounds “of any other reason which does not affect the employee’s ability to perform that employee’s duties under the contract of employment.” While the latter is a safety net, some would be inclined to interpret the removal of “political opinions” in the Amendment Act to mean that an employer can terminate the contract the contract of employment on grounds of an employee’s political opinions.

According to Youngman, the government the inclusion of “sexual orientation” was a result of lobbying by the Botswana Network on Ethics Law and HIV/AIDS, Ditshwanelo Botswana Centre for Human Rights, LEGABIBO “a few years back” in various fora.

“As human rights organisations, we continue to ensure respect for human rights and we will continue to ask for laws and policies that are conducive for all Batswana,” he said.

As far as Sunday Standard could determine, the Employment (Amendment) Act 2010 is the only piece of legislation that recognises gays and lesbians. With the Court of Appeal having directed that LEGABIBO should be formally recognised by the Ministry of Labour and Home Affairs, it is likely that many more pieces of legislation will also recognise gays and lesbians in like manner. At the time that parliament discussed the bill that establishes the Act, Nkaigwa was a councillor in the Gaborone City Council, ascending the mayoralty the following year.

Youngman has refuted Nkaigwa’s assertions stating that Statistics Botswana labour surveys don’t demarcate people according to sexual orientation.

“I also know that we have industrial relations cases relating to some our members who were denied employment solely on the basis of their sexual orientation. Others say their bosses have made their lives a living hell simply because they are gay or lesbian,” said Youngman, adding that Nkaigwa should reveal employers who are biased in favour of homosexuals in order that LEGABIBO can direct its unemployed members there.

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