Constitution does not proscribe homosexuals - Bayford

22nd January 2016


By Nicholas Mokwena - Reporter

Lesbians Gays and Bisexuals (LEGABIBO), is one of the organisations that support government initiatives that fight HIV and AIDS among vulnerable groups, attorney Dick Bayford has said.

Bayford is representing LEGABIBO in its battle for registration. He told court on Friday that one of the objectives of LEGABIBO is to promote public health by establishing an environment for protection of Gays, Lesbians and Homosexuals to protect themselves against human rights violations. He said if LEGABIBO was to use its registration to promote illegal activities, then the minister has the powers to de-register the society.

“There is no evidence that LEGABIBO’s objectives are likely to be used for any unlawful purposes prejudicial to or incompatible with peace, welfare or good order in Botswana. The denial of registration does not serve any substantial government interest. The state has provided no legitimate justification for violating the respondents’ rights. The High Court decision, which ordered the state to register LEGABIBO, was correct and should be upheld by the Court of Appeal”, said Bayford.

Government has appealed High Court Judge Terrence Rannowane’s November 2014 ruling that Botswana government should register the organisation to the Court of Appeal. He said the government’s “refusal to register LEGABIBO was not reasonably justifiable under the Constitution of Botswana.”

Bayford said that the decision to refuse registration of LEGABIBO was unreasonable and irrational because the Director of Civil and National Registration and Minister failed to apply their minds to the question whether to register LEGABIBO, and instead misconceived the provisions of the Constitution, and applied irrelevant considerations based on errors of law and unsubstantiated assumptions.

He told a panel of five judges that Section 3 of the Botswana Constitution provides that “every person in Botswana is entitled to the fundamental rights and freedoms of the individual” including the right to equal protection of the law, the right to freedom of assembly and association, and the right to freedom of expression. In this regard there is no provision in the constitution that proscribes homosexuals, Bayford told the court.

Government through the Attorney General has argued that LEGABIBO shouldn’t be registered because Botswana’s Constitution does not recognise homosexuals. Attorney Otsile Rammidi told the court that the group could be used for an “unlawful purpose” that is “prejudicial to or incompatible with peace, welfare or good order in Botswana” and that registering a lesbian, gay and bisexual organisation would popularise acts criminalised by the Penal Code.

Rammidi stated that there is no evidence that was placed before the High Court to suggest that the time has come for gay rights of association to be considered.

He said the Registrar of Societies and the minister were justified to refuse the registration of LEGABIBO. To disseminate information on activities that are outlawed will affect the morality of the society, said Rammidi. He stated that protections, which are not guaranteed under section 3 of the Constitution, couldn’t be granted under any piece of legislation because “Section 3 is the foundation of all rights in the Constitution.

It is guaranteed to every person in Botswana”. Section 3 states that  ‘whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his or her race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest.’ Judgement in the case has been reserved.

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