I order as follows - Justice Rannowane #LegabiboCase

Correspondent | Friday November 21, 2014 12:26

 

“I have read and re-read LeGaBiBo’s objectives with view to finding out if any of them offends against Section 7 of the Societies. In other words I have examined each objective with the primary aim of determining whether anyone or all of them are “likely to be used for any unlawful purpose or any purpose prejudicial to, or incompatible with peace, welfare and good order in Botswana.”

All of these objectives appear to me to be quite harmless and in fact promote good values such as the promotion of a culture of self-reliance, promotion of human rights of all people without discrimination, support of public health interest of members and education of the general public on issues of human rights etc.

Registering a society for the purposes of lobbying for legislative reforms to make same sexual relationships legal is not a crime, neither does it give any appearance of being “likely to be used for any unlawful purpose or any purpose prejudicial to, or incompatible with peace, welfare and good order in Botswana”.

What would clearly offend (the Penal Code), is to engage in same sex relationship. But it is important not to read into the objectives some meaning that are not justified by the words used in these objectives.

The other ground for refusing the registration was that the Constitution does not recognise homosexuals. This assertion is not correct. There is no provision of the Botswana Constitution that expressly states that it does not recognise homosexuals. Likewise, there is no provision in the same Constitution that states that it recognises heterosexuals. It is not a crime for one to be attracted to people of one’s own sex and this has nothing to do with the Constitution.  It may be that engaging in homosexual activity is outlawed. But if I were to use an example of one born left-handed, if it was a crime to write with a left-hand, such a person would not be punished for being left-handed but for writing with a left hand just as a gay person would not be punished for being gay but rather for engaging in a same sex relationship.

In my opinion there is a world of difference between engaging in a prohibited conduct and lobbying for that conduct to be decriminalised. The first one is unlawful while the latter is not.

The argument is not sustainable because it presupposes that people should be punished for what they are capable of doing and not for what have actually done.”