UPDATES ON THE CONSTITUTIONAL REVIEW PROCESS
By Raymond Kolanyane
As part of its mandate and na- tional responsibility, it is upon Human Rights advocacy institutions to continue to engage the public regarding the constitutional review process. More so it is important to be reminded of the timeline of events of this process as well as the input that civil society organizations have made along the way. It is also imperative that we continue to discuss the challenges encountered while undertaking this duty. Finally, this discussion will inform Batswana of the new developments and how they can ensure their continued participation.
At the end of the year 2021, the president of Botswana appointed the Presidential Commission of Inquiry into the review of the Constitution. The obligation of this commission was to travel around the country to find out what Batswana wanted expressed in their constitution. At each place visited presentations were made at the Kgotla, interest group sessions and through written submissions. Following this inquiry, the commission then presented the president with a report on the wishes of the citizens and the organizations that had participated in this process. On 12th March 2024, a Bill containing some of the recommendations from this report was published in the Botswana Gazette. The next step would be for this bill to be discussed in parliament.
The LGBTIQ+ community and its allies, with the assistance of LEGABIBO, participated in this process. More than 50 presentations were made to the commission in over 40 locations advocating for the rights of the LGBTIQ+ community. LEGABIBO in July 2022 was also allocated a slot to present to the commission, in addition to having its representatives present at some of the locations. The Universal Periodic Review NGO Working Group, which LEGABIBO is a part of, also met with the commission.
Some of the submissions made with regard to and by the LGBTIQ+ community include amending sections 3 and 15 of the constitution to include the categories of disability, sexual orientation, gender identity and expression as well as sex characteristics. These submissions were made to ensure that our constitution under section 3 states that all the rights under Chapter 2 are also for the LGBTIQ+ community to enjoy. Members of the LGBTIQ+ community still face discrimination in health facilities, police stations and society in general. Constitutional protection from discrimination would come with the mandate to ensure that they are not denied rights or dignified treatment due to their sexual orientation and gender identity.
LEGABIBO and its members also requested that the constitutional right to freedom of conscience be promoted and fulfilled for the LGBTIQ+ community, as oppression of the community on the basis of religion still remains a challenge that affects them where policy and law formulation are concerned.
Other submissions demanded that more rights be added under Chapter 2 of the Constitution.These rights include; the right to found a family, the right to employment, the right to education, the right to health, the right to social security. Furthermore, LEGABIBO requested that there should be a stipulation that decrees the election of a human rights defender as part of the specially elected members of parliament.The last request was that 2 of the 6 specially elected seats should be reserved for women.
From the commission’s report and the Bill, only a few of these submissions were successful.The Bill adopted protection of intersex (sex characteristics) and persons with disabilities from discrimination.While it is unfortunate that the commission did not recommend explicit constitutional protection of people based on their real or perceived sexual orientation and gender identity, it is still commendable that they recognized the rights of intersex people. However, it is important to note that the protection of people born with reproductive organs that are not typical goes hand in hand with protecting their self-determined gender identity and sexual orientation.
The Bill also proposes entrenching the rights to work, to collectively bargain and strike, health and education. Considering the alarming rates of youth unemployment in this country, it is only right that we have the right to work in the constitution and strive for its promotion through supporting legislation and policies. The right to health is also important to Batswana to ensure that the government at least meets the minimum standards of what it means to fulfill this right in a country.This right can also be extended to the trans-diverse community through the provision of gender-affirming care and LGBTIQ+ inclusive campaigns. If gay men are considered at risk of HIV infection, then why have we not seen condom leaflets and campaigns targeted towards them on national platforms? The right to health can be utilized in this regard considering that consensual same-sex sexual conduct has been decriminalized since 2019.
However, interpretation of these rights and how they relate to youth, women and the LGBTIQ+ community still remains as the responsibility of civil society organizations to carry out.There is a need for continued engagement with the process by reaching out to members of parliament as the next step involves further consultations with the public about the Bill. Civil Society Organizations, the general public and other stakeholders need to increase their efforts to advocate for marginalized groups, the rights of all Batswana and for initiatives that could improve governance. There is still a need to include members of parliament, other community leaders and the public in Human Rights workshops.
Finally, the commission also proposed increasing the number of specially elected members of parliament from 6 to 10.While the number of specially elected members will be increased, there are no proposals to have a certain portion of these seats reserved for women or human rights defenders. In engagements with members of parliament, improving women’s participation in politics should be advocated for.
Some of the ways that this could be done is to have laws that promote women’s participation that speak to having parliament seat quotas for women, funding and empowerment initiatives. Having the constitution advocate for women’s participation in politics would be instrumental in catapulting the government’s efforts on this.
In the pursuit to advocate for marginalized groups, the ‘Nothing for us, without us’ principle must remain center stage. In all the Kgotla meetings held by the commission youth, persons living with disabilities and women were underrepresented. The majority of speakers were elderly men. Some of the locations were inaccessible to persons with disabilities. The homophobia and transphobia expressed at these sessions also discouraged members of the LGBTIQ+ community from attending. Some trans-identifying individuals were also denied entry into the Kgotla in one village.These are issues that need to be addressed going forward; both by civil society organizations and the government.
One of the main areas of concern about this process was the blatant disregard for civic education by all stakeholders, especially the government. The process was carried out with no prior education on the constitution for the general public and it was also carried out hastily. The presentations that people made were, for the most part, on issues not relevant to the Constitution but rather the policies. Both members of parliament and civil society organizations need to ensure they prioritize civic education to improve public participation.
It is the duty of every Motswana to contribute to the governance and framing of this country and one of the ways to do that is through this process. Our participation in the framing of our constitution should also embody respect for people that are different from us; to borrow from our president’s narrative, ‘A re chencheng!’
What have you done to learn more about the LGBTIQ+ and their challenges? What efforts have you made to be more accommodative for persons living with disabilities? How will you be positively impacting the constitutional review process? These are the questions that should guide our efforts to change for the better and gauge our civic responsibility levels.