Saddled with a law that invades the privacy of consenting adults of a different sexual orientation, the Botswana government’s human rights record was tested last week in a landmark case before the High Court.
The debate over whether public opinion has shifted from prejudice to tolerance exploded in the Gaborone High Court as the lawyers representing gays and lesbians produced volumes of evidence suggesting that majority of Batswana are now tolerant of homosexuals.
It emerged from the case arguments that morality sought a higher pedestal so as to demean fundamental human rights.
Judges and lawyers clashed over whether or not Batswana have softened their attitudes towards homosexuals in recent years.
On the other hand, attorneys representing the State threw salvos contending that Batswana’s values and attitude toward gays and lesbians have not changed since they were tested in the Kanani Vs Attorney General land mark decision.
In the case, the Court of Appeal declared that sections 164(a), 164(c) and 167 of the Botswana Penal Code which criminalises same-sex conduct between consenting adults in Botswana were constitutional.
The obtaining case was heard by Justice Abednego Tafa, Michael Leburu and Jenifer Dube in a Court that was jam-packed with gays, lesbian and human right activists.
Claims that government’s position on the gay community has not changed burst into full view this week as the lawyers representing the State and defence lawyers clashed over allegations that the West was sponsoring The Lesbians, Gays & Bisexuals of Botswana (LeGaBiBo) to advance their own interests.
The skirmishes in the case became evident later as Advocate Sidney Pilane, who was instructed by the Attorney General, repeatedly demanded that the High Court was bound by the decision of the Court of Appeal in the Kanani matter.
The applicants’ lawyers had from the onset signalled that they would play down the Kanani decision charging prevailing circumstances warrant a different decision existed.
Earlier on, lawyer Gosego Lekgowe representing a gay man Letsweletse Motshidiemang argued that Botswana’s society has changed its attitudes in the manner it used to view gays and lesbians and was now accommodative. According to Lekgowe, the nation has softened its attitudes towards members of LGBT.
He argued that political leaders have started to advocate for the tolerance of homosexuals. He said tolerance should also be reflected in the laws.
“The assault of gays and lesbians could be a sign that the laws discriminate against them,” said Lekgowe adding that even ideals of vision 2016 call for a tolerant nation.
He was responding to Justice Dube who had asked if people in heterosexual relationships are not assaulted. Justice Leburu sought to know why Lekgowe’s client was of the view that the sections in question did not protect gays and lesbians since they were gender neutral. The lawyer replied that “for a homosexual person having sex is criminalised. The effect of the law is discriminatory to a homosexual person; the law does not allow him to express his sexual identity.”
Lekgowe said the government has no business in what is going on in the bedrooms of consenting adults.
“What is the interest of government in the bedroom?” he asked rhetorically. Leburu suggested that it could be to safeguard public morality. The attorney insisted that the bedroom is a private place and the government could only have interest if such acts result in health issues and the government has to foot the bill for medical costs.
Citing a quote from an unidentified philosopher, attorney Tshiamo Rantao who was representing LeGaBiBo said: “The question is not what the two consenting adults are doing in their bedroom. It is; what is the law doing in their bedroom.”
He said if gays and lesbians’ rights are protected by the Constitution, their “feelings must also be protected.”
Justice Dube asked Rantao to highlight the research or study that was in possession of LeGaBiBo which showed that the minority group is a vulnerable and needs to be protected; something that was not presented in the Kanani case.
Replying, Rantao said a research by academics from the University of Botswana and a South African researcher which has been made available to the Court showed that gays and lesbians was the community that is most vulnerable to violence and discrimination in government health facilities. He said this information was also admitted by government officials.
Rantao said there was no evidence placed before the Court by the Attorney General suggesting that public opinion was stagnant. He also took issue with suggestions by Pilane that LeGaBiBo was being sponsored by the West to advance their cultural values.
“It is totally unacceptable and unbecoming for a member of the bar to use this language. It beats logic why the Advocate writes these things. We do not need the West to civilise us. I don’t know where he got this,” the attorney said.
The exchange between judges and lawyers representing the State heated later when advocate Pilane insisted that the case was not about gays and lesbians.
“…They (gays and lesbians) must be heard when they complain. It is about us as a society. What moral values do we have or whether we should have no morals at all. This case is about the society and not an individual,” he said.
Justice Tafa who was apparently not amused by Pilane’s conduct warned him to tread carefully on the use of language.
He warned: “Homosexuals are a constituent in this country. It is not the Westerners who said that, it is the Court of Appeal. Nobody dictates to them what they should do with their sexuality. That’s why the Ministry of Health is concerned about them.”
But Pilane insisted that the Applicants did not have a strong case as “the matter ended in 2003 when the Kanani matter was decided. There must be evidence that compels change.” Justice Tafa reminded Pilane that the Applicants’ attorneys had earlier on highlighted that there was evidence suggesting that things have changed.
Justice Leburu asked Pilane if sexual orientation was a matter of nature or choice to which Pilane responded: “I do not have the expertise to answer that my Lord.”
Pilane contended that the key questions to be asked were when must and individual be granted his inclination; is it sexual intercourse that is fundamental, whether for gay people or everybody. Tafa fired back: “They are not saying it’s not a fundamental right.”
Pilane stood his grounds. “I’m not saying they cannot express themselves. But if you have an individual who wants laws to be struck down to suit inclination, the question is; is it fundamental.”
He added that in the Kanani Case “the issue was that the provisions represent the values of the society, there must be evidence that those moral values have changed.”
“They (applicants) must satisfy the court with evidence that those values have changed…” Justice Tafa interjected and suggested that the gays and lesbians were advocating for their rights to associate with those who feel they should associate with them freely.
Advocate Pilane said “The Court of Appeal said in Kanani that the right to assembly does not mean to break the law.”
Pilane said the Kanani decision was based on foreign judgements and even Dutch Roman Law “but in the end the Judges of the Court of Appeal came back home because the laws of this country must be a reflection of the society.”
“The court must decide in accordance with what this country want not about what the Dutch Roman Law say,” Pilane argued.
He was responding to Tafa’s suggestion that the authorities or judgments cited in the Kanani case were based on Dutch Roman Law.
Summing up his argument, Pilane said “There is in the end one question that this Court must consider; 15 years since Kanani matter, on the basis of evidence, have the values of this country changed, that people must be allowed to go all the way…that the Applicant can even be allowed to even to it with animals.”
Tafa noted that the “The Applicant’s sexual orientation is not that he prefers animals. Those who prefer animals would come to Court.”
Pilane replied that “The Applicant says he wants to have sex in the fashion he wants.”
Tafa threw the Court into pearls of laughter when he told Pilane that “probably the one who wants to have sex with an animal, if he has a right, we will hear him when he comes.”
The judge said the Kanani decision could have been decided based on the circumstances that prevailed at the time and now those circumstances have changed.
Pilane insisted’ “Forgive me my Lords you are bound by the Kanani matter.”
Tafa urged Pilane to “open the doors for us so that we can revisit the Kanani issue,” Pilane retorted “I never shut [the doors] my Lord.”
“What changes have occurred if any since the Kanani decision since 15 years ago to alter that position? The views of the Court of Appeal are views of the people of this country,” he said.
According to Pilane “The problem with this kind of case and arguments is that, the moment you open the door, they will keep pushing and pushing and pushing until it is wide open. And before we know it we will not have morals.”