These men and women pictured hoisting placards are not persons, they are just lepers who are unworthy of Botswana’s Constitutional protection – this more or less sums up the government of Botswana’s position on lesbians, gays and bisexuals.
Government lawyers argued on Friday that a homosexual is not a person before the Constitution of Botswana. This emerged in a case in which government is appealing a High Court judgment which overturned an earlier decision by the Minister of Home Affairs refusing to register Lesbians, Gays and Bisexuals (LEGABIBO) as a society.
On 14 November 2014, the High Court Judge Terence Rannowane declared that the decision of the Minister to refuse registration of LEGABIBO contravened sections 3, 12 and 13 of the Botswana Constitution and declared further that the Respondents were entitled to have the group Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) registered as a society. The Attorney General appealed this decision.
State Prosecutor Otsile Rammidi argued before a panel of five Court of Appeal judges that the High Court “erred in fact and in law by finding that homosexual persons are included within the definition of the word “persons” in Sections 3,7,12 and 13 of the Constitution.”
Section 3 of the Botswana Constitution provides that “every person in Botswana is entitled to the fundamental rights and freedoms of the individual” including the right to equal protection of the law, the right to freedom of assembly and association, and the right to freedom of expression.
The state lawyer however argued that the High Court’s “understanding of the word “person” in the Constitution appeared to have been erroneously equated to the word “human”. Our contention is that when the” lesbians, gays and bisexuals “approached the court a quo, they did not just do so as human beings, they did so as human beings situated in a particular way. They did so as homosexuals.”
Rammidi further argued that the High Court had “failed to understand who is or is not a “person” for the purpose of claiming Constitutional protection.” The State prosecutor also questioned whether the judges who are not democratically elected had legitimate authority to place a sexually liberal interpretation on the Constitution.
Quoting the Zimbabwean Supreme Court decision of Canaan Banana V State, Rammidi stated in his heads of arguments: “I do not believe that this Court lacking the democratic credentials of a properly elected parliament should strain to place a sexually liberal interpretation on the Constitution of a country whose social norms and values in such matters tend to be conservative.”
Lesbians, gays and bi-sexuals represented by Dick Bayford of Bayford and Associates and Lesego Nchunga of Dow and Associates argued that the High Court decision, which ordered the state to register LEGABIBO, was correct and should be upheld by the Court of Appeal.
That the decision to refuse registration of LEGABIBO was unreasonable and irrational because the Director and Minister failed to apply their minds to the question whether to register LEGABIBO, and instead misconceived the provisions of the Constitution, and applied irrelevant considerations based on errors of law and unsubstantiated assumptions. The decision was further irrational and unlawful because it violated lesbians, gays and bi-sexuals’ constitutional rights.
They pointed out that there was no evidence that LEGABIBO’s objectives are likely to be used for any unlawful purpose prejudicial to or incompatible with peace, welfare or good order in Botswana. The denial of registration does not serve any substantial government interest. The State has provided no legitimate justification for violating the respondents’ rights.
Section 3 of the Botswana Constitution provides that “every person in Botswana is entitled to the fundamental rights and freedoms of the individual” including the right to equal protection of the law, the right to freedom of assembly and association, and the right to freedom of expression.
The right to equal protection of the law means that administrative decisions should not be exercised in a manner which is unfair and discriminates arbitrarily between different classes or groups of people.
LEGABIBO argues that the High Court correctly held that, a person’s sexual orientation does not make a person a criminal. Denying people the right to register a society for the purposes of lawfully carrying out law reform advocacy is a violation of their constitutional rights to freedom of association and assembly and freedom of expression.
LEGABIBO argued that Constitutional rights are universal in application and can only be restricted if this is reasonably required in the interests of defence, public safety, public order, public morality or public health. Any limitation of the rights in the Constitution must be proved to be reasonably justifiable in a democratic society. They further contended that the Director and the Minister had failed to demonstrate a clear, tangible and significant threat, which would result from their registration, which would justify a limitation of their rights.
LEGABIBO lawyers further pointed out that there is no law in Botswana that prohibits anyone from being a lesbian, gay or bisexual person, nor is there any law which detracts from their fundamental rights. Botswana’s criminal law in this respect extends only to certain sexual conduct between persons of the same sex. The fact that certain acts are criminalised is irrelevant to the issue of the rights of persons, irrespective of their sexual orientation, to associate freely with others based on their shared identities, interests, values and concerns.
