The Monitor (Botswana)

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.

 ?? ??

Newspapers in English

Newspapers from Botswana