Botswana takes hot seat before Human Rights Committee
As State appeals decriminalisation of same- sex sexual activities
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ruled that section 164 subsection ( a) and ( c) of the Penal Code criminalised same sex sexual activities and should be repealed.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.