The Chairperson of the Lesbians, Gays & Bisexuals shares the following regarding the arguments of the state, represented by the Attorney General’s external representative and a former high court judge; Attorney Marumo.
Attorney General (A.G.)’s Arguments
– Objected the use of policy instruments developed by Government whilst the applicants were presenting their arguments in especially the issue of insinuation when the heads of arguments never attached the policy document that was mentioned in the affidavit, this was noted. In contradiction, the A.G. further mentioned anticipation regarding the applicants’ use of evaluating the time and developments of LGBTI issues in Botswana, in reference to the Kanane Case that noted “Botswana is not ready for homosexuality”. It has been 13 years since the Kanane Case.
– The A.G. Argued that the application for a review should be left to the administrator (government) and not the courts in accordance to section 61 of the law, also that the procedure was not followed accordingly with regards to applying for a review. He also noted that the respondent should have been the director of the department or the minster and not the attorney general. In response, the applicants’ cited section 18 empowering citizens to challenge a decision that infringes on human rights.
– The A.G. argued that the founding affidavit did not include common law principles or citations. (Personal comment: How are normal citizens who do not have legal expertise expected to have this kind of knowledge?)
– They also argued that the Societies Act dictates that reviews of decisions of the state are only subject to the rationality and basis of the decision not the actual decision – addressing the applicants’ attempt for a decision review, who argued that the decision was irrational and unlawful.
– The A.G. argued that the Societies Act provides for the decision maker to reject an application at his own discretion, provided that it is rational. Also that any of the objectives, not all, could be the basis for rejection. Furthermore, stating that the respondent was not consulted for elaboration on the basis of the rejection also contravening the proper procedure.
– The A.G argued that parliament represents society and that Botswana is still not ready and in fact that attitudes are hardening towards issues of homosexuality. Furthermore, he stated that it is parliament’s role to change legislature and not the court. (Personal comment: Where does civil society stand within the context of society’s construct/paradigm?)
– The A.G. argued that there was no need to look at other courts, inclusive of Russia, Zimbabwe, South Africa and America amongst others when the law in Botswana has already interpreted the Penal Code and the same court decided previously on such a matter. The applicants made reference to application litigation only and not decriminalization.
– In addition the A.G. argued that international accords/protocols/agreements between nations, as cited by the applicants who further elaborated on the ratification and localization of such agreements into legislature, should not influence the court as its role is to uphold the constitution and not change legislature.
– The A.G. argued that homosexuality is illegal in Botswana. Contradicting the applicants’ clarifying the difference between sexual orientation and sexual acts, as the latter is an action that has been clearly articulated as so by the Penal Code. Also, applicants noted the clarity on “unnatural acts” between male/female, female/female and male/male.
– The A.G. also noted in the Kanane case, that the judge stated that LGBTI persons were not represented to be protected. Which was further addressed by the applicants’ noting that Kanane was alone and that this application was made by 20 individuals and that Legabibo’s registration is aimed at exactly that, representing the community on different platforms within the conforms of the law otherwise they would not be able to do so when unregistered.
– The A.G. argues that Legabibo is to harbour criminal activity on the basis that homosexuality is illegal in Botswana and that it shall also, as per its objectives, engage to decriminalize same-sex relations. The Judge questioned how the latter point was criminal and the A.G. just reaffirmed that it is. Contradicting the applicants’ prior example of organisations like BONELA who have advocated for principles that were for changing the law.
The applicants were represented by respected human rights activist and the first ever female (and former) high court judge, Justice Unity Dow.
“There is a lot of excitement in democracy and when a voice is given to those that have never been given the opportunity to share their story, the principles of dignity, humanity and botho are paramount. That is the beauty of a democracy.” Dumiso Gatsha