The Court of Appeal bench has on Friday reserved judgement in a case in which Government is challenging a lower Court’s decision to allow the registration of Lesbians, Gays and Bisexuals Botswana (LEGABIBO) society. The application follows Government’s decision to appeal the decision of the High Court to have the Society registered. LEGABIBO won the case last year but the government appealed the case. The case goes back as far as 12th March 2012 when the Director of Department of Civil and National Registration rejected the application for registration on the grounds that Botswana’s constitution does not recognise homosexuals and that the application would violate Section 7(2)(a) of the Societies Act which says that “the registrar shall refuse to register and shall not exempt from registration a local society where it appears to him that one of the objectives of the society is, or likely to be used for any unlawful purpose prejudicial to, or incompatible with peace, welfare or good order in Botswana.”
Presenting his case before the court the Counsel from Attorney General office Otsile Rammidi said that according to the law and constitution of Botswana there is no discrimination based on sex, religion or colour and that is why the case should be just blown away because homosexuals are men and women, and as such they are covered by the constitution as males and females. He argued that the right to associate should not be limited to or based on sexual orientation. When questioned by the Judge if there is anything wrong with what LEGABIBO stands for he made an example of a person who will claim that he/ she is a cannibal. “Saying that you are a cannibal is not wrong, but feeding on human flesh is what will become the crime, so the same applies for homosexuals, if they register a society then they will commit a crime since now it will encourage same sex,” he said. He did admit that the objectives of LEGABIBO are not a problem, but if the registration of the society is granted they will then send messages that will mislead the public, as quoted in section 7(2)a of the societies act.
The respondents attorney Dick Bayford said that he does not find anything that offends Section 7(2)a of the Societies act after reading the objectives of LEGABIBO again and again. He said there is inherently nothing sinister or unlawful about the process of lobbying or advocacy. Putting into consideration that it maybe that engaging in homosexual activity is outlawed, if he was to use an example of one born left handed, if it was a crime to write with a left hand such a person would not be punished for being left handed but for writing with a left hand, the same way a gay person would not be punished for being gay but rather for engaging in same sex relationship. “In my opinion there is a difference between engaging in a prohibited conduct and lobbying for that conduct to be decriminalised. The first one is unlawful whilst the latter is not,’ he said. He argued that as in the constitution every Motswana is entitled to the fundamental rights and freedoms of the individual.
That is to say they are entitled to that right regardless of his or her race, place, origin, political opinion, colour, creed, sex but subject to respect for the rights and freedom of others and for the public interest. He dealt with the argument that the refusal to register LEGABIBO was based on the understanding that the applicants were entitled to commit offences. “These offences are unnatural offences and indecent practices, but it is not sustainable because it presupposes that people should be punished for what they are capable of doing, and not for what they have actually done,” he said. He made example that stealing, robbery, or murder are crimes that people are capable of doing but they will never be criminalised for those just because they are capable. Bayford said criminalisation imposes barriers; as he challenged the judges to develop the constitution that is evolving with life and that seeks to protect. He said that people should not be discriminated because of their sexual orientation. The judgement is to be made at the date to be announced.