Advocate Sidney Pilane has challenged the widely held philosophy that because gay men engage in sexual activities within the confines of their own private abode, the law should let them be.
Making his case at the Court of Appeal (CoA) this past week Pilane argued that it sends a wrong message that people should be excused for activities conducted in the privacy of their own home, effectively challenging the old English precept that opposes any laws that dictate how one should behave in the privacy of their own home.
Pilane represented the Attorney General in an appeal against a High Court judgement decriminalizing anal sex between two consenting adults. He said if people were to be excused in this manner, it meant anybody can engage in criminal activities with impunity provided it is done in private.
“If the right to privacy is to do anything that you like let’s allow everyone to do drugs, sleep with animals in the privacy of their homes,” he argued.
Justice Ian Kirby asked if it was possible to enforce the law without denying people right to privacy and Pilane’s response was “then everybody can do anything they like in the privacy of their home. Everybody can take drugs and do things in the privacy of their homes.” He asked Kirby if that is how it should be.
“What really is a gay? If the society accepts them why should it criminalize that which makes them what they are,” Justice Mercy Garekwe asked a follow up question, to which Pilane responded “I’m glad it’s not my job to deal with that. Let’s leave it to Police.” Pilane however seemed to contradict himself at times when speaking for Batswana and the government in relation to their acceptance of gay people. They both (at least in his arguments before court) accept and recognize the existence of gay people yet it is wrong for homosexuals to engage in sexual activity.
“They (Batswana) have never wished them (gay people) out of existence. The law is only against the act of sex. Batswana have no problem with gay people.” He even reduced being gay to a “condition” like any other.
“I’m not saying Batswana approve of anybody breaking any law including the impugned provisions. They disapprove of anyone who breaks the law. Batswana are not heartless beasts,”
Pilane also dismissed the point made by the Respondents about President Mokgweetsi Masisi’s utterances in support of their cause when he said the homosexual community deserve to have their rights protected. Pilane said the context was in relation to domestic violence.
“Of course they deserve to be protected, in some countries they are attacked, even gang raped. They deserve no less protection against violence that anyone else. Nobody hates them, nobody dislikes them, nobody says they should not be protected .The same provisions in the constitution today are the same in provisions in 2002 (Kanane vs State).”
He said instead gay people are asking the court to change the constitution which matter he said should be referred to parliament because it involves policy.
“In your Heads of Argument you said the President is best placed to share the views of this government,” Justice Kirby asked. “He has opinions but he can’t change the law. You should ask yourself why he hasn’t moved parliament to decide this matter. It might be because he feels the country is not ready,” Pilane said of Masisi’s views on homosexuality. Judgement on the case Attorney General V Motshidiemang, LEGABIBO has been reserved for an undisclosed date by the panel of five CoA justices.