LGBTIQ await life defining Court decision
Mpho Mokwape | Monday October 18, 2021 06:00
The community often referred to as the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) has been fighting and tooth and nail for long to have and enjoy the rights accorded to the majority. As a minority group, the gay community has decried the constant ill-treatment it suffers at the hands of the majority being accessing health services or just going about life. With the High Court having given it hope in 2019 when some sections of the Constitution that criminalised same sex conduct were repealed, now its eyes are set on the hills of the highest court to make that life changing decision final.
The Court of Appeal (CoA) is expected to deliver the much anticipated judgment on the mater following the State’s appeal on Tuesday and put the matter to rest once and for all.
The full bench comprising Chief Justice Terrence Rannowane, CoA Judge President Ian Kirby and Justices Mercy Garekwe, Isaac Lesetedi and Monametsi Gaongalelwe heard the matter in detail as the gay community cried foul about the constant abuse it claims to suffer as a result of its sexuality while the government on the one hand bemoaned what it calls erosion of societal morality. In essence it could be life changing for the gay community as many believe that their fundamental rights have been violated for so long and that they are not able to access necessary services when the need arises, especially health care services.
According to Letsweletse Motshidiemang, who has been leading the long fight by lobbyists for the decriminalisation of same sex conduct and homosexuality, he has the right to privacy and his rights to be protected just like any citizen. Motshidiemang first filed papers at the High Court in 2017 challenging the constitutionality of Section 164(a) and 167 of the Penal Code, which criminalises homosexuality. He challenged the sections saying it interferes with his fundamental rights to liberty, as well as his right to use his body as he sees fit, which includes expressing his sexual affection through the only means available to him as a homosexual. Motshidiemang says he has a right to equal protection of law and the right not to be subjected to inhuman or degrading treatment. Motshidiemang, who is supported by the gay rights lobby group LEGABIGO, argues that the law interferes with his fundamental right not to be discriminated against irrespective of his sexual orientation.
The student wants the court to declare that the said sections interfered with his fundamental right not to be subjected to inhuman and degrading treatment or other such treatment. “The law violates my fundamental right and freedom to privacy in that it interferes with an intimate and personal aspect of my life that causes no disrespect to the rights and freedoms of others and also causes no harm to the public,” he stated Meanwhile, the gay community as evidenced in their court papers, believes that arguments that Batswana do not accept homosexuality did not hold any water as evidenced buy how open the society has been. Even the courts believe that opinions about homosexuality have changed over the years and that society has become more inclusive than what the state is trying to imply.
The State on one hand still believes the country is premised on Christian and traditional values that do not recognise homosexuality and its conduct. It is adamant that the society was still big on morality and that should not be disturbed by legalising any immoral activities or conducts. It remains to be seen if the CoA will hear the cries of the gay community and finally put the matter to rest in its favour. Judgment is reserved in the matter that has caught the attention of the international community.