Rannowane, Leburu judgements ‘birds of the same feather’
Mpho Mokwape | Monday December 6, 2021 06:00
The sodomy laws made their way into the country in 1964 though the enactment of the present penal code, which has since undergone several amendments. However, with the evolution of human rights advocacy and the ever changing laws in relation to human existence, the stroke of luck for the homosexual community was long overdue.
Chief Justice Terrence Rannowane and Justice Michael Leburu made sure that the ever changing laws and evolution of human rights were even felt on the shores of Botswana. Both Justices have on different occasions set precedents in championing the rights of the gay community. Back in 2014 Rannowane was the first to forge a way for the LGBTQI community when he ordered the government to register an organisation for homosexuals and sexual minority group. In a landmark judgment Rannowane declared that the 20 applicants were entitled to assemble and associate under the name and style of Lesbians, Gays and Bisexuals of Botswana (LEGABIBO). Rannowane also declared that the applicants were entitled to have the group LEGABIBO registered as a society. "In a democratic society such as ours, freedom of association, assembly and expression are important values duly protected by our Constitution. The enjoyment of such rights can only be limited where such limitation is reasonably justified in a democracy.
It is also not a crime to be a homosexual," he said then. He also said the objectives of LEGABIBO include carrying out political lobbying for equal rights and decriminalisation of same sex relations. He added that lobbying for legislative reforms is not per say a crime. "Refusal to register LEGABIBO was not reasonably justifiable under the Constitution. It violated the applicants' rights to freedom of expression, freedom of association and freedom of assembly as enshrined under Sections 3, 12 and 13 of the Constitution of Botswana," he said. He further added that the decision of the then Minister of Labor and Home Affairs to refuse the registration of LEGABIBO was in contravention of the mentioned sections of the Constitution of Botswana as it denied the individuals equal protection of the law.
Then in 2019 came the judgment of Justice Leburu that pinned the final nail in making sure that the rights of the gay community were as recognised as those of the majority groups by decriminalising same sex conduct and paved the way for the rights of the gay community. In his much-celebrated judgement Justice Leburu said the State’s failure to justify its opposition to the matter was a key factor in the decision. The judge said there was no justification that was given by the government as to why a person’s rights to privacy and autonomy, ought to be curtailed, relating to consensual acts done in private. The Kanane versus the State decision also acted as an anchor for the judge who then accused the state of failing to sustain their arguments but rather pulled the case decision as a trump card.
Kanane was charged in March 1995 for committing unnatural offence with another adult male. According to the judge, the Kanane case decision by the Court of Appeal in 2003 was of the view that time for decriminalising homosexual practices between two or more consenting adults in private was not ripe. However, he pointed out that the highest court left out a window of opportunity whenever the imperative of events and circumstances were apposite and conducive, to decriminalise it. “The applicants’ case that there has been a material change of circumstances since the Kanane decision was rendered and therefore sex between males and males should be decriminalised,” he said.
Meanwhile, in the words of human rights lawyer, Tshiamo Rantao, who has been championing the fight for the rights of minority groups in the country especially the gay community, “the well-reasoned Court of Appeal groundbreaking judgment will be felt not only in Botswana but also around the globe. The LGBTI rights are not only national but also universal.
Indeed, human rights are universal, hence the global significance of the judgment. What has to be remembered is that the full bench Court of Appeal judgment penned by the retired President of the Court, Justice Ian Kirby, affirmed the 2019 judgment of the High Court, penned by Justice Michael Leburu”. He explained that the offensive provisions of the Penal Code were struck down by the High Court back then, and so same sex sexual conduct has not been criminal since then. Justice Kirby’s judgment was only echoing what Justices Rannowane and Leburu had set out for the gay community.
“In my judgment the sections that criminalise same sex conduct have been rendered unconstitutional by the march of time and the change of circumstances. At present, they serve only to stigmatise gay men unnecessarily, which has a harmful effect on them. Those sections have outlived their usefulness and serve only incentivise law enforcement agents and others to become keyhole and intruders into the private space of citizens. That in my view is neither in the public interest, nor in the nature of Botswana”.
In his words, the retired President of the Court of Appeal sang praises for the decision of Justice Leburu who struck down the sections on the ground that they breached the fundamental right to privacy as well.