Botswana’s Gay Rights Groups Celebrate a Big Court Win

Botswana’s top court has ruled that, regardless of moral disapproval, the government cannot ban gay rights advocates from forming political action groups. This crucial affirmation of civil rights could have wider meaning for LGBT organizations in the country and beyond.

In 2014 Botswana’s High Court ruled against the government to affirm that Lesbians, Gays and Bisexuals of Botswana cannot be prevented from registering as a non-governmental organization. The Court also acknowledged that LGBT groups are entitled to campaign on HIV/AIDS prevention and fight anti-gay legislation.

Botswana’s government decried the outcome and appealed to the Court of Appeals. Now, the Court of Appeals has upheld the ruling, stating that forming such a group is a fundamental right.

“It is clear that the government’s decision [to seek the ban] interferes in the most fundamental way with the respondents’ right to form an association to protect and promote their interest,” Judge Ian Kirby wrote on behalf of the five panel court.

As for the government’s contention that such a group might encourage members to break the law, the judges were not convinced: “That concern or reason for refusal was irrational on the evidence before us, so there can be no question of his decision being necessary in the interests of public order.” 

The organization, known as LEGABIBO first applied for registration in 2005 and was refused. The group reapplied in 2012, but again, the government rejected them.

The reasons given were that the country’s constitution doesn’t recognize homosexuality, and that organizations cannot be registered if they are perceived as “likely to be used for any unlawful purpose or any purpose prejudicial to or incompatible with peace, welfare or good order in Botswana.”

Botswana’s penal code punishes same-gender sex, or “unnatural offenses,” with a prison term of up to seven years. While the prison sentence is rarely invoked, it could be at any time.

The law also penalizes so-called “attempts to commit unnatural offenses.” And that’s what the government’s argument hinged on: that the very act of advocating for LGBT rights means the group is encouraging law breaking.

However, Botswana has no law that specifically bans homosexuality as an identity. Thus, the lower court — and now the appeals court — were able to see a distinction and reject the government’s arguments.

President Ian Khama has liberally discussed his desire to keep homosexuality illegal in Botswana. And that’s even at the risk of exacerbating Botswana’s HIV rates, which are among the highest in the world.

For example, Khama has refused to distribute condoms in Botswana’s prisons. His administration insists that doing so would lend tacit support to homosexual acts.  

At the time of the 2014 High Court ruling, Monica Tabengwa, LGBT researcher at Human Rights Watch, called the decision a landmark moment

“The court’s ruling is a significant victory for the LGBT community, not only in Botswana but elsewhere in Africa where LGBT groups have faced similar obstacles to registration,” she explained.

“The Botswana High Court decision is a milestone in the fight for LGBT people’s right to equality under the law. Freedoms of association, assembly, and expression reflect paramount values in a democratic society. By rejecting the refusal to grant legal status to an organization on the basis of the members’ sexual orientation, the court was protecting those rights for all in Botswana.” 

There have been modest signs of progress in other areas too.

For example, while Botswana’s laws remain strongly apathetic to LGBT rights, in 2010 an employment law was brought into force that prevents LGBT employees from being fired based on their sexual orientation or HIV status. That’s a vital step toward ensuring that the LGBT community can maintain its well-being.

Seemingly in synergy with Russia’s recent crackdown on LGBT rights, several African nations have sought to ban NGOs that work toward LGBT rights progress.

While Botswana’s Court of Appeals decision may not create a sweeping change among other African nations, it does at least suggest that efforts to resist civil rights infringement are not in vain. The fundamental right to engage in the political process can ultimately bring about real change for the LGBT community.

Photo credit: Thinkstock.

47 comments

Victor J.
Victor J.2 years ago

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Vargas Cynthia M.

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Siyus Copetallus
Siyus Copetallus2 years ago

Thank you for sharing.

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Nina S.
Nina S3 years ago

tyfs

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Danuta Watola
Danuta W3 years ago

Thank you very much for sharing

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pam w.
pam w3 years ago

Ian Khama is an evil man.

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Jan L.
Past Member 3 years ago

There are still so many challenges to overcome bigotry and discrimination.

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Roberto Meritoni
Past Member 3 years ago

THANKS

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Roberto Meritoni
Past Member 3 years ago

THANKS

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Roberto Meritoni
Past Member 3 years ago

THANKS

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