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Significant progress as Botswana Court of Appeal recognises the rights of LGBT persons

18 March, 2016

Tashwill Esterhuizen

legabiboOn 16 March 2016, the Botswana Court of Appeal, unanimously, delivered a landmark judgment in which it dismissed the government of Botswana’s appeal against a Gaborone High Court decision which allowed for the registration of the Lesbians, Gays and Bisexuals Organisation of Botswana (LEGABIBO). This case is a victory for the advancement and recognition of fundamental, universal human rights for gay, lesbian, bisexual and transgender persons, both in Botswana, and throughout Africa.

In February 2012 activists sought to have their organisation, LEGABIBO, registered. The Director of the Department of Civil and National Registration and the Minister of Labour and Home Affairs refused their application for registration, on the basis, amongst other things, that same-sex practices are criminalised in Botswana, and thus that lesbian, gay and bisexual individuals were not recognised as persons protected by the rights provisions in the Constitution of Botswana. The High Court of Gaborone rejected the State’s argument as irrational and ordered that LEGABIBO be registered as an organisation.

The Court of Appeal reaffirmed the decision of the Gaborone High Court, by holding that the refusal to register LEGABIBO was not only unlawful, but a violation of the right of LGBTI activists to freely assemble and associate.  It found that the Minister based his decision on mere speculation, that the decision was unsupported by evidence, and that it unjustifiably limited the rights of activists.

The Court of Appeal judgment is not only significant for its promotion of human rights for LGBTI activists, but also for its recognition and appreciation of the vulnerability of sexual minorities in society. The Court emphasised that “members of the gay, lesbian and transgender community form part of the rich diversity of any society”.

Notably, the Court mentioned that there is no evidence to the contrary before it that sexual orientation is not a natural attribute of every human person and that there is no evidence to suggest that it can be learnt or imposed. The Court emphasised that homosexuality has never been a crime. In Botswana (as in several other African countries), the law prohibits certain sexual practices between consenting adults. The law does not, however, extend to the criminalisation of sexual attraction to members of the same sex and does not affect basic constitutional rights.

Importantly, the Court of Appeal held that fundamental rights, including human dignity, are universal and enjoyed by every member of society. The State can only validly limit the fundamental rights of persons if it is reasonably justifiable to do so within the circumstances.

Despite this victory, sexual minorities remain extremely vulnerable and in need of assistance in the quest for equal treatment. The case, nonetheless, represents significant progress in the promotion of the rights of lesbian, gay, bisexual and transgender persons. The judgment has broader implications for Botswana, in that it highlights the State’s duty to uphold basic rights, and ensure dignity, tolerance and acceptance for marginalised and unpopular groups. It also illustrates the importance of the independence of the judiciary and highlights the judiciary’s role in the protection of the most vulnerable groups in society.

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