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Keletso Thobega



CELEBRATION TIME: The LGBT community celebrated the historic ruling on same sex romance this Tuesday

Botswana’s judicial system has proven to be progressive and upholds human rights, says attorney Tshiamo Rantao following yesterday’s Gaborone High Court landmark ruling that decriminalised same-sex relations.

He described the ruling as groundbreaking and a victory for Botswana adding that it was a brilliant and well-researched judgment. “Not single but three judges which is commendable. This means that members of the LGBT community who want to have sex should have it their way and there will be no peeping Thomases,” he said. He added that it was pleasing that the judgment dealt with all arguments for and against same-sex sexual relations. Court impugned decisions that criminalise same-sex sexual relations in the provision of consenting adults, he said.

Rantao, who was representing the applicants in the matter, explained that this ruling meant that same-sex relations were not criminal with immediate effect, however clarifying that it didn’t necessarily mean that same-sex couples could get married as yet. He said the issue before court was only in respect of same-sex sexual conduct and consenting adults in same-sex sexual relationships, adding that the issue of marriage between same-sex might come to court.

“This type of litigation is in public interest, and so we do not bring an avalanche of cases but bring building blocks and take it from there.” In the ruling, a bench of three judges, Michael Leburu, Abednego Tafa and Jennifer Dube following a three-hour judgment, repealed Sections 164 and, and 165 of the Penal Code, which they said were discriminatory to the gay community. The sections criminalised sexual conduct between two consenting adults who identified as homosexuals. The three judges served the unanimous ruling before a packed courtroom 8 and 9. The applicant in the matter, identified as LM, is a 24-year-old Literature student at University of Botswana. LM stated in his application that since he was 10-years-old, he had found that he did not find interest in activities of boys, which attracted ridicule to him and that when he reached puberty, he was attracted to other boys.

He further stated that when he was in his teens, he expressed love to a man for the first time. Since then he had dated men and was happy. LM stated that he was dating a man, who he had same-sex relations with, but the latter, in accordance with the Constitution, was considered criminal. In 2016, LM filed an application to the high court that challenged Section 164 and 165 of the Penal Code. The applicant argued in part that Section 164 is vague and must be struck down.

“There must be clarity and consistency in laws. Without such it lacks predictability. How did the law intend to police private matters?” The applicant was supported by LEGAGIBO, which was admitted as amicus curae (friend of the court) with the support of the Southern Africa Litigation Centre. In the ruling yesterday, the judges stated that there is indirect discrimination on the applicant which is viewed as criminal. They said sections 164 and 165 are ultra vires the Constitution and that 167 must be severed from Section 167.

“Sex is not only for procreation – no longer sustainable view. Sodomy laws must be shelved. They must be placed in museums. Anal sex is a variety of sexual activity.”They also stated that it was difficult to regulate human interaction and that the laws infringe on human rights. They said that stipulations of section 164 and 165 violate several basic human rights, and the rights to dignity and privacy.

“Our constitution provides for protection for all and there is no place for discrimination in the world. It is not the right of the law to regulate affairs between consenting adults. If so, it is a violation of Constitutional rights.”Leburu, who read out the judgment on behalf of the three judges, said “we cannot use cultural rights to deny people their rights.

“Sexual acts do not according to us trigger any emotional issues with the public. It is a matter of privacy and consensual sex between LGBTI cannot be regulated “The state cannot place sheriffs in people’s bedrooms and subject individuals to degrading and inhumane treatment based on their sexual engagements.”

There were cheers and ululations from the crowd, with lots of hugs and kisses exchanged, as the gay community sighed with relief after a long journey. Chief Executive Officer of LEGAGIBO Anna Mmolai-Chalmers could not hide her joy and was almost in tears. In a brief interview, she said that she never imagined that this would happen in her lifetime. “This whole case has been a rollercoaster. We are relieved over the respectability of the judicial system. We are grateful to the community for their support.”

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I broke the law in good faith – Moswaane



YES I ERRED: Ignatius Moswaane is weary of some within his party, BDP.

Member of Parliament (MP) for Francistown West, Ignatius Moswaane, has his electorates behind him. The maverick MP has recently found himself on the wrong side of the law after circulating a graphic video clip on social media depicting a woman in South Africa being brutally knifed to death.

At a consultative meeting with his constituents at the Leseding Hall on Saturday, he explained that his action was done in good faith. “I am a member of the SADC committee that deals with issues of abuse and harassment relating to women and children. I shared the video on facebook with our parliamentary group. This was to bring about awareness amongst ourselves on gender violence and brutality against women,” he said to the bemused audience. Moswaane, who admitted that he broke the law, swears that, the video was leaked deliberately by his enemies in the ruling Botswana Democratic Party (BDP) to put him into trouble with the law and jeopardise his political career.

The outspoken legislator claimed that when he shared a similar video of an unnamed country in the past, he achieved the desired results because the SADC committee he is a member of, took up the matter and an investigation was made. According to recent media reports, the MP has been viewed with suspicion of disloyalty to President Mokweetsi Masisi given the ongoing feud the state president has with his predecessor Ian Khama. Those looking at him with suspicion have suggested that he was loyal to Khama who is leading a crusade to topple Masisi from power at the general elections this year.

According to Moswaane, some with vested interests in the BDP want him out of the race for Francistown West constituency so that their preferred candidate may contest in his place. “I do not think it is the party. Maybe it is just some individuals in a faction within the party.” After the video was leaked, BDP Secretary General Mpho Balopi issued a statement expressing dismay at the circulating video.

The MP however, does not see the video clip incident in isolation. He is convinced that considering his motive of sensitising people of the brutal act, he should have been warned instead of being arrested and his cell phone taken away from him. “It is clear that DIS is looking for something else in my cell phone which has got nothing to do with the video,” said Moswaane who accused the spy agency, DIS and his political opponents in the BDP of working against him. During question and comments time, a woman who introduced herself only as Senjoba, called for financial support for Moswaane should he need the services of a lawyer.

Another speaker, Moalosi said that what was happening to the MP was an indication that no one is safe. “The opposition has always said that DIS is used for witch-hunting. It shows we are also not protected,” he said. Olebile Motsamai called on the people to protect their MP. “As the electorate, you know what to do to end these things,” said Motsamai. The legislator

recounted a number of instances where some of his constituents have come to confess to him that DIS had offered them money to help frame him but they refused. This is not the first time that the MP has accused DIS of being used for political ends. The head of the spy agency, Peter Magosi has, in the past, rubbished Moswaane’s claims that he is being followed.

Moswaane’s collision with the BDP leadership is not new as he has also clashed with the leadership of former president Khama. In 2009 Moswaane contested and won Monarch south ward as an independent candidate after rejecting the primary election results which he found controversial.

In 2013 he and the BDP were disqualified from contesting a by-election by the Independent Electoral Commission. This was after the party had neglected to hear Whyte Marobela who had challenged the primary election results involving himself and Moswaane.

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NOT TRUSTED: The BNF veterans body does not trust anything with BDP roots

Botswana National Front (BNF) Veterans Association is cautioning the Umbrella for Democratic Change (UDC) to “tread carefully” regarding a possible working relationship with newly-formed Botswana Patrictic Front (BPF).

“UDC has to tread carefully because BDP never changes and the opposition never learns,” said the Association’s Chairman Patrick Kgoadi ahead of their meeting this weekend.The BPF is the latest breakaway offspring of the ruling party and is backed by a number of former BDP’s disgruntled members among them former president Ian Khama, former minister Biggie Butale and Tati East MP Guma Moyo. At a recent meeting in Serowe, Khama confirmed the membership of Moyo while over this past weekend, Butale insinuated that former minister Pelonomi Venson-Moitoi was also a member of the new party.

Kgoadi said even though it might be seen to be a good thing to work with BPF, the opposition should vigorously scrutinise the party and its intended purpose as the relationship could backfire and cost the opposition victory in the national polls. The purpose of the Saturday meeting is to discuss the collapsed structures of BNF, preparations for 2019 general elections, developments at UDC and formation of new party BPF.

According to Kgoadi, they have observed that the BNF structures are not as active as they should be especially during the election year.“Our structures used to be more active on election year. This year things are just blurry and this is worrisome. Even at UDC level BNF should be playing a leading role not only in the presidency but across the country. “We always have to be taking a leading role as a party that plays a significant role in uniting opposition parties.

“So as veterans we would be discussing these issues and how we could advise both the BNF and UDC leadership,” said Kgoadi. The veterans have since the formation of the association been at loggerheads with the BNF Central Committee on how things are run both at the BNF and Umbrella for Democratic Change (UDC). The veterans have thus been accused by the party leadership of always blowing things out of proportion and failing to use proper party channels when discussing internal matters.

BNF Secretary General Moeti Mohwasa has on several occasions pointed out that the veterans have served the party for long and should know processes and procedures to be followed when addressing internal matters. He expressed concern that the veterans always use channels that are not sanctioned by the party and its constitution. Kgoadi said the BNF central committee has for long been disingenuous and refused to meet them since 2017.

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