Saturday, August 13, 2022

Two former High Court judges fight different corners in Botswana homosexuality legal row

If Labour and Home Affairs Minister, Edwin Batshu were to register the association of lesbians, gays, bisexuals and transsexuals in Botswana he would be charged with aiding and abetting homosexuality which is a crime in Botswana, this emerged in court last week.

Former High Court Judge Moatlhodi Marumo who is representing the state in a case in which Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) is asking High Court Judge Terence Rannoane to set aside the minister’s decision to refuse LEGABIBO registration.

Representing LEGABIBO is another former high court judge, Unity Dow who argued that Minister Batshu’s decision violated her clients’ freedom of association and assembly. Dow pleaded with the court to set aside Batshu’s decision and declare that LEGABIBO be registered as a society.

Dow told the court the minister in his decision to deny LEGABIBO registration failed to explain what her clients were doing that is against public morality.

She further stated that her clients were hindered to associate themselves though their main intention was not to do anything illegally.She argued that her clients were only seeking a legal entity that they would use for communicating with themselves.

Dow further noted that there was nothing that the minister sought to achieve when denying her clients the right to associate. She said that her clients should not be discriminated on the basis of sexual orientation and as a vulnerable group should be protected through the domestication laws. Marumo who is representing the state pointed out that gays, lesbians and bisexuals don’t represent a group or class which requires them to seek protection under the Constitution as per the Court of Appeal Judgment. He cited the Court of Appeal case in Utjijwa Kanani who was accused of engaging in homosexuality was told by the court that gays, lesbians and bisexuals don’t represent a group or class which requires protection under the Constitution.

Kanani had filed a court application challenging the country’s laws on unnatural sexual liaisons. He had argued that the offence he was alleged to have committed – having unnatural sex – should no longer be the subject of criminal sanction and the sections of the Constitution that bars such conduct should be declared null and void.

Marumo argued that Dow could have brought evidence to show that the Court of Appeal decision was no longer applicable because their numbers require them to be protected by the constitution. He said if the minister were to allow LEGABIBO registration, it would constitute a crime and he would be charged with aiding and abetting homosexuality which is a crime. Marumo argued that what the applicants sought to achieve was to convince the court to do administrative work.

He said Parliament was the one vested with responsibility to come up with laws and the court only comes in to the picture to interpret such laws. He asked the court to strike the case out because the applicants even failed to call the minister to give reasons. Marumo argued that this could have helped provide the answers to their questions on why the minister refused to register LEGABIBO. Justice Rannoane reserved the judgment on the matter.

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