NAVIGATING THE DILEMMA WE FACE WITHIN THE POLITICAL FRONT

The Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people in Botswana experience high levels of stigma, discrimination and violations that infringe on their basic human rights. Reports of verbal abuse and harassment in the forms of speech, sexual violence and sometimes murder, are often reported. These forms of inhumane acts are in most cases administered by the very people we seek counsel and safety from, i.e. families, political leaders as well as religious leaders. The discrimination LGBTI people face also flows into the workspace where they are humiliated or sometimes even denied employment on the basis of their sexual orientation and/or gender identity. Within the health care sector, LGBTI people are deprived of essential services or given substandard care. All these violations are made possible by provisions such as penal code section 164, 165 and 167 which criminalized adult consensual same sexual activity (repealed June 11 2019). These laws infringed upon the rights of LGBTI individuals, and they deprived them of dignity, privacy and personal liberty as well as freedom of expression and this impacts on the mental health of a lot of Batswana as well as those that call this beautiful land home. As queer people, we then ask, how do we navigate the dilemma we face within the political front? The Constitution of the Republic of Botswana was drafted prior to independence and adopted on the 30th of September 1966, this making it supreme law of land. The document sets out the powers and functions of three branches of government, a.) the public organizations b.) the fundamental rights and freedom of citizens and c.) the parameters within which administrative and political leaders and well as citizens should operate. Though the constitution guarantees equal rights for everyone, the dilemma we face is that the law does not provide equality for all as it segregates the minority. The law as it stands does not explicitly criminalize lesbian, gay, bisexual, transgender, queer or intersex (LGBTQI+), but the language that is contained in the penal code could be interpreted as criminalizing some aspects of same-sex sexual activity between consenting adults. It specifically criminalizes unnatural acts, which in most instances, is often interpreted to mean same sex sexual acts. This is a gross violation of LGBT people’s rights and goes against the constitution. This dilemma we face within the political front is that even with a set constitution we find that women and children, youth and people living with disabilities as well as people that fall under the (LGBTQI+) community are considered vulnerable groups in Botswana, each facing their own significant challenges. While existing policies provide these groups with the opportunity to earn an income, the lack of coordination and implementation means that assistance does not always reach those who need it the most. As members the LGBTI community we seek transitional justice that aims to put in place initiatives that aim to restore dignity and encourage law and policy reform as well as pave the way for long term political and socio-economic change. However, depending on the structure of these mechanisms and the actors involved in these processes, transitional justice has the potential to further discriminate against and marginalise LGBTI voices when their rights are not explicitly addressed. All persons within the Republic of Botswana, regardless of their sexual orientation, gender identity and expression are entitled to fundamental rights and the right not to be discriminated against, harassed or abused. All are born equal, with inherent dignity and are entitled to be treated with utmost respect. Once we accept these fundamental human rights as applicable to all persons, only then can there be a basis upon which LGBTI persons can enforce and assert their rights.

The courts have emphasized that ‘It is the duty of the State to uphold fundamental human rights for every person and to promote tolerance, acceptance and diversity with our constitutional democracy”. The law needs to be very clear and inclusive of everyone, taking into account the different needs of different communities, that is to say all laws and policies in Botswana, need to be in line with the constitution, which is the supreme law of Botswana. As a country that prides itself on concepts such as Botho, and fundamental human rights, Botswana needs to ensure that all Batswana enjoy their constitutional Human rights by upholding the repeal of the abovementioned sections of the penal code. Reversing the June 11th judgement, would be a violation of LGBTI people’s rights to privacy, liberty, dignity and equal protection from the law, it would mean that queer people are not seen as valuable members of society who contribute to the development of the country, we simply cannot enforce a law that is set to cause division and segregation but we are to unite and live as one.