Botswana Guardian

Botswana takes hot seat before Human Rights Committee

As State appeals decriminal­isation of same- sex sexual activities

- Phemelo Maribeng

Botswana will appear before the United Nations Human Rights Committee next week on October 20 and 21.

This will be the second time that Botswana appears before the committee for an evaluation of its implementa­tion of its commitment to the Internatio­nal Covenant on Civil and Political Rights ( ICCPR).

A core principle of this Convention is non- discrimina­tion. Botswana joins three other countries that are scheduled to appear before the committee, including Armenia, Germany and Ukraine. The Human Rights Committee which has received country reports and submission­s from non- government­al organisati­ons will discuss a range of issues with the four delegates through a virtual public dialogue. But days before Botswana makes her big appearance before the committee, a panel comprising of five judges including Court of Appeal President, Ian Kirby, Chief Justice Terrence Rannowane, and Justices Isaac Lesetedi, Monametsi Gaongalelw­e, as well as Mercy Garekwe presided over the appeal case of the decriminal­isation case of Letswelets­e Motshidiem­ang ( LM) v the Attorney General. The case was heard on Tuesday, and judgement in the matter has been reserved. The Attorney General was represente­d by Advocate Sidney Pilane. The LGBT community was represente­d by Rockfall Lekgowe and Tshiamo Rantao.

On June 11, 2019, the High Court delivered a landmark ruling that made internatio­nal headlines in the same case. The court ruled that criminalis­ation of consensual same- sex activities between consenting adults violates the constituti­onal rights of lesbians, gay, bisexual and transgende­r persons to dignity, liberty, privacy and equality. The court also ruled that section 164 subsection ( a) and ( c) of the Penal Code criminalis­ed same sex sexual activities and should be repealed.

In a statement released this week, the UPR NGO Working Group comprising of Botswana Council of Non- Government­al Organisati­ons ( BOCONGO), Ditshwanel­o, Letloa Trust, LeGaBiBo, MISA Botswana, as well as the Rainbow Identity Associatio­n recognised the role that the court plays in the protection of human rights and the dignity of individual­s before the law. “We support the independen­ce of the judiciary as it acts to strengthen the dignity of all persons,” the statement read.

In his submission­s, Pilane pleaded with the court to take a leaf from and remember the words of Lord Bingham, Aguda JA and Tebbutt JP that the role of the courts is to interpret legislatio­n and leave the function of legislatio­n to parliament and honour tested doctrine of separation of powers. He also wondered why all these “new compelling circumstan­ces” have not been given to and have not moved the one set of people who can give the respondent what he wants: the government and parliament. “Is it not perhaps the fear that the government and parliament will not be moved,” he submitted. He also wondered why the government and the parliament have not been moved to repeal the impugned provisions. In their submission­s, the respondent through Rockfall Lekgowe submitted that Section 164 is now a law that is neither reasonably required nor necessary for public morality. They also argued that attitudes and approach of the society have become more tolerant to homosexual­s, and that the world has also changed attitudes. Furthermor­e, they cited Botswana neighbours South Africa, as a country that permits homosexual­s. “There is no harm to the public or any public interest as the act occurs in private,” they argued. In their introducti­on, they also demonstrat­ed how in the history of sexuality, the heterosexu­al man has had the most profitable life, and that he can consider himself fortunate that his sexual orientatio­n has been aligned with the order of nature.

 ?? ?? NO HARM... Lawyers for the LGBT community argue that attitudes and approach of the society have become more tolerant to homosexual­s
NO HARM... Lawyers for the LGBT community argue that attitudes and approach of the society have become more tolerant to homosexual­s

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