Parliament is supreme to court - State
l Opinions might have changed about homosexuality l Court believes society has no problem with gay rights
The State, in its effort to fight the decriminalisation of same sex conduct, says it is Parliament not court that was tasked with changing policies in relation to law and the Constitution following the previous decision won by litigants permitting such. The State has been relying heavily on the issue of morality since the case started and believes that opinions might have changed with regards to the society’s feelings about homosexuality in the country, but says it’s only the legislature that has the power to effect change on the matter.
State legal representative, Advocate Sidney Pilane on Tuesday before a full bench of the Court of Appeal (CoA) submitted that as much as opinions have changed, it is Parliament that was supposed to effect change with regards to gay rights but not the court as argued by the respondents in the appeal.
“What was in question in Kanane case was whether there was sufficient evidence to warrant a change of policy, the court found that the law was perfectly fine and that there was no need for change,” he said.
Pilane explained that in the Kanane case it was the CoA that indicated that it was Parliament that was supposed to do that, not the court itself.
Advocate Pilane argued that even though it might seem as that opinions have changed, it is Parliament that should decide which activities or conduct must be penalised or made criminal. Judge President of the CoA, Ian Kirby interjected saying it was the court that should interpret the Constitution and also questioned Pilane which are the vulnerable groups.
Advocate Pilane agreed on the interpretation of the Constitution by court, but said in not so many words that the gay community was not the minority groups.
He likened the gay community to those who smoke dagga questioning whether they are vulnerable since they are also not allowed to do what they love, which is smoking.
“Are we now going to change the law to suit everyone who feels they are vulnerable? Many are vulnerable but then how do we define vulnerability, where do we stop? Will the stigma stop?” he questioned.
Pilane also said there were many people in the community who are vulnerable, therefore it was for the court to intervene as to define properly who falls under vulnerable group so as not to cloud the meaning of the word and its intended purpose. He said the law does not prohibit anyone from being gay as it was indicated in the Kanane case, therefore, there was no need to change the policy.
Justice Mercy Garekwe asked whether that was not enough to make sure that the policy is changed since someone was denied medical attention on the account of being gay.
Pilane said it was an isolated case and that it should be taken as the defining moment to change the policy that has been in place and working. On the other hand, the gay community believes it is time for the law to be changed so as they could enjoy the same rights as any members of the society. Senior attorney, Tshiamo Rantao representing Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) submitted that any legislation was subject to scrutiny of the courts as it was evidenced in the Good vs State case.
He explained that the court was clear on that point and it emphasised that it was clear that every piece of legislation was subject to scrutiny of the courts to anyone who has a locus standi to challenge the constitutionality of the legislation.
“In the Ramantele case, “the courts have a sacred duty which they must exercise without fear or favour to test any law passed by Parliament against the imperatives of the Constitution and to strike down any law including customary law that does not pass constitutional master that will always be so”.
Meanwhile, the bench is also of the opinion that society does not have any problems with the gay community as implied by the State.
Not in so many words Justice Isaac Lesetedi questioned the State on whether there was any objection from the society as it says while implying that it was evident that the society has progressed and seems to be with issues in regards to gay rights.
The bench, which is made up of Chief Justice Terrence Rannowane and Justice Monametsi Gaogalelwe, reserved judgement to a later date to be announced.
Justice Kirby said the case was of importance and needed time for research and thorough reading.