Being gay is not unlawful

SHARE   |   Wednesday, 19 November 2014   |   By Keitebe Kgosikebatho

It is not illegal for someone to be gay. Gaborone High Court delivered a judgement in favour of 20 individuals who filed a case earlier this year challenging  the decision by the Director of Civil and National Registration and the Minister of Labour and Home Affairs to refuse to register the organisation, Lesbians, Gays and Bi-sexuals of Botswana (LEGABIBO)

The individuals had in their heads of arguments argued that the refusal to register their organisation violated their constitutional rights, including their rights to freedom of association, freedom of expression, and equal protection of the law. “We are overjoyed at the outcome of the case. Lesbians, gays and bisexuals have long strived to be able to form an organisation which can support them and be their voice on matters that affect them,” said Caine Youngman, LEGABIBO Coordinator. “It has been a long and arduous journey towards recognition and we are relieved that the court has protected our rights”.

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In the heads of arguments presented before the court by the applicants’ attorneys, the 20 sought judicial review of the decision to refuse to register LEGABIBO, on the basis that the refusal was irrational and illegal as it transgressed the rights provisions in the Botswana Constitution and that  the Director (Civil and National Registration) and Minister (of Labour and Home Affairs)failed to apply their minds to the question whether to register LEGABIBO, and instead misconceived the provisions of the Constitution, and failed to consider the provisions of the Societies Act.

The applicants were also of the view that Director and Minister did not substantiate the refusal to register LEGABIBO saying that there is no evidence or suggestion 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 they argued does not serve any substantial government interest. They further argued that the refusal to register LEGABIBO without any reason for such decision, suggests that the decision is based on moral disapproval of the objectives of LEGABIBO. And such reasoning has been rejected by courts as irrational and misplaced in a democratic society which has as its founding principles the notion of tolerance, diversity and pluralism.

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“Botswana’s HIV/AIDS National Strategic Framework 2010-2016 seeks to ensure equal access to health and social support services for all people regardless of race, creed, religious or political affiliation, sexual orientation or socio-economic status. LEGABIBO intends to work with government to improve access to health services for LGBT persons, and this judgment enables them to do so,” said Cindy Kelemi Executive Director of Botswana Network on Ethics, Law and HIV/AIDS (BONELA).

“The judgment emphasises the importance of the right to freedom of association in a democracy. The judgment will benefit not only the prospective members of LEGABIBO, but any minority group which seeks to uphold its right to freedom of association in Botswana in the future,” Anneke Meerkotter from the Southern Africa Litigation Centre said.

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On 16 February 2012, the Applicants applied for the registration of LEGABIBO in terms of the Societies Act. On 12 March 2012, the Director of the Department of Civil and National Registration rejected the Applicants’ application for registration on the basis that the Botswana Constitution does not recognise homosexuals and that the objectives of the organisation are contrary to section 7(2) of the Societies Act. The Applicants’ appealed against this decision to the Minister of Labour and Home Affairs. The appeal was rejected on 12 November 2012.

Once registered, LEGABIBO aims to provide an opportunity for lesbians, gays and bisexuals to form part of an association which will provide them with information on human rights and advocate for their rights, particularly the right to access health services.

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The matter was heard in the Gaborone High Court on 18 March 2014



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