Déjà vu for the gay community as State appeals 2019 decision
Nearly two years ago, a bench of three judges deliberated on the highly publicised case that called for the decriminalisation of same sex sexual conduct brought by one Letsweletse Motshediemang and supported by the Lesbians, Gays and Bisexual of Botswana (LEGABIBO).
Then Justices Michael Leburu, Jennifer Dube and Abednigo Tafa wholly agreed that the right to privacy, liberty and dignity were fundamental rights for all and should be respected and upheld.
However, the State having felt aggrieved by the decision will now go head to head again with the LEGABIBO in what seems like déjà vu all over again.
For instance, the Court of Appeal bench will on Tuesday next week hear the case again as the State says the High Court judges erred in their judgement in deciding to decriminalise some of the provisions in the Constitution that criminalised same sex conduct.
The judges then ordered the government to change its laws on criminalisation of same sex relations on account that they were discriminatory and exposed the gay community to more violence.
On the other hand, the State is adamant that the country is Christian enshrined nation and does not recognise same sex conduct and are back challenging the decision of the High Court.
At the time of the case, State advocate, Sidney Pilane told the court that he would rather die before seeing same sex relations decriminalised.
He spoke about Motshidiemang commending about his bravery but insisted that his case was not about homosexuals and the penal code but was about public morality and that he was strictly speaking for the government.
“For the law to change, sometimes there has to be evidence that the values of the society have changed, and in this particular case it is about what the people want and their values, the law should reflect on the values of the society,” he said.
Pilane argued that there hasn’t been any change in society towards gay people and when it comes to the people, Parliament knows better.
He said courts should be restrained, should not be allowed to play God and should respect people even those who are not educated because they too have set of values and morals.
Meanwhile, for Motshidiemang, a gay man who was challenging the government’s criminalisation of same sex consensual relations between consenting adults, challenged the State with studies carried as to why the government needed to change its laws on same sex relations and repeal sections 164(a) (c) and 167 of the Botswana Penal Code.
The provisions in the sections criminalise same sex sexual conduct between consenting adults in Botswana and impose a maximum sentence of seven years imprisonment. In his submissions, Attorney Tshiamo Rantao for LEGABIBO argued that the reason why the gay community is often assaulted was mainly due to the fact that the government enables the violence and assault towards homosexuals.
“The law is an enabler, it gives leverage to people that assaulting a gay person is totally lawful and that cannot continue the gay community is a minority and they cannot be allowed to suffer any further,” he said.
Rantao challenged the constitutionality of sections 164(a) (c) and 167 saying it does not make sense that the government wants to regulate what transpires in people’s bedrooms.
He explained that according to studies carried out which the government was part of, it has since shown that the law on its own increase the risk of HIV and other sexually transmitted infections within the gay community as they are often discouraged from seeking help from health officials.
“Homosexuals have reported that treatment they get from health officials was appalling as they are considered to be doing something outside the norm and this discourages them from seeking help,” he said.
Gosego Lekgowe, lawyer for Motshidiemang also argued that when the law was made to criminalise same sex relations the society was not ready to accept homosexuals but now is the time to change the law as society has changed.
He submitted that the society has become more tolerant of LGBTIQ community.
“Consenting adults must have the liberty to do whatever it is that they want as long as it does not interfere with anyone’s rights and it’s not of public interest,” he said.
Lekgowe argued that it was inhumane and degrading for Parliament to have interest in what transpires in people’s bedrooms especially between two consenting adults.
Lekgowe on argument about morality said it had nothing to do with decriminalising same sex relations more so that it had got nothing to do with the public.
He questioned why would the public have anything to say about what happens in someone’s private space.