In a major victory for the LGBTI community in Botswana, the country’s Court of Appeals has ruled that it is not a crime to be homosexual.
The ruling on March 16 is a culmination of 11 years of court battles brought by a Botswana LGBTIQ organization against the government for refusing to allow them to be officially registered.
The Botswana Court of Appeal found the refusal by the government to register Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to be unlawful. A full bench upheld the decision of the High Court in ordering the government of Botswana to register LEGABIBO as a society in term of the Societies Act.
The Court also ruled the denial violated LEGABIBO members’ constitutional rights to equal protection of the law, freedom of association and freedom of expression. The appellate judges noted that promoting the human rights of LGBTI persons and advocating for law reform was not unlawful.
This is a huge step forward for the LGBTIQ community both in Botswana and in Africa, where 33 countries have criminal laws against sexual activity by lesbian, gay, bisexual, transgender or intersex people. Worldwide, nearly 80 countries criminalize same-sex activity.
In 2012, LEGABIBO, which has been coordinated from within the Botswana Network on Ethics, Law and HIV/AIDS (BONELA), applied but was refused registration as a society by the Director of the Department of Civil and National Registration and subsequently the Minister of Labor and Home Affairs. The government’s position was that lesbian, gay and bisexual person’s rights were not recognized by the Constitution and the objectives of LEGABIBO were incompatible with peace, welfare and good order in Botswana.
Thuto Rammoge and other activists took the government to the High Court seeking a review of the decision to refuse their registration. They argued the decision was “irrational and in violation of their constitutional rights to equal protection of the law, freedom of association and freedom of expression. The activists won and in November 2014 the High Court ruled that the refusal by the state to register LEGABIBO was indeed unlawful. The Government appealed the decision.
In delivering its judgment in the case of the Attorney General vs Thuto Rammoge and 19 Others, the Appeal Court reaffirmed that the refusal to register LEGABIBO was “both irrational and in violation of the Right to Freedom of Expression and Association.” The Court further emphasized that there was no legislation in Botswana that prohibits anyone from being a homosexual. It said the objectives of LEGABIBO, which includes promoting the human rights of LGBTI persons and advocating law reform, were not unlawful. The Court emphasized that every citizen had the right to enjoy all fundamental rights and any attempts to deny this was to deny an individual human dignity.
In a statement, Caine Youngman of LEGABIBO, who has been a part of the registration process from the beginning, said; “The win gives us hope, faith and belief in Botswana’s legal system. It has been a very long and exhausting 11 years since we first started the journey to have our organization registered.”
Anna Mmolai-Chalmers, LEGABIBO Coordinator at BONELA applauded the judgment saying it was “one of the many occurrences in Botswana where democracy has come to play, the courts are protecting minority rights and giving a voice to the LGBTI community”.
However BONELA’s Executive Director, Cindy Kelemi cautioned against becoming complacent saying; “There is a lot more that still needs to be done to ensure the promotion and protection of the human rights of the LGBTI persons and Parliament as the legislative arm of government is responsible for making laws which will protect LGBTI persons from discrimination, stigma and abuse.”
Published on March 19, 2016 | OutRight Action International an LGBT human rights organization