Decriminalisation: The next mountain to climb
Mbongeni Mguni | Friday November 21, 2014 12:40
“Why would you want to regulate sex when there are so many other things in need of regulation? This is between two consenting adults. Under the current law where homosexual acts are illegal, how many cases have you actually heard of people being brought before court?”
Botswana Network on Ethics, Law and HIV/AIDS (BONELA) executive director, Cindy Kelemi asks the rhetorical questions, with a slightly bemused look on her face.
In fact, the most cited case involves an incident that took place in Maun on December 26, 1994 when police raided two consenting men who were engaged in sexual intercourse. That arrest subsequently led to the Magistrate Court, the High Court and the Court of Appeal, which on July 30, 2003, ruled that the sections of the Penal Code criminalising homosexual acts were constitutional.
Perhaps emboldened by the lengthy case, a six-year-old organisation known as the Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo) approached the Registrar of Societies in 2004 for official registration.
That, in turn, led to a decade long battle that reached a watershed moment last Friday when High Court Judge, Terrence Rannowane, ruled in favour of LeGaBiBo’s registration.
The next chapter in LeGaBiBo’s story is to resurrect the 2003 case and mount a constitutional challenge to decriminalise homosexuality.
“Decriminalisation is the next step,” says Kelemi.
“We are saying that section of the Penal Code needs to be removed and the law must be silent on this matter. We are pushing this with passion because we believe that only with an enabling environment can this community be able to actually participate in the broader society and in issues that affect their lives,” she adds.
Working in their favour will be the promissory wording of the 2003 judgement issued by the five-panel bench.
“There must be a need for the courts to be alive to the fact that the constitutional rights of the citizens of Botswana must, where circumstances demand, keep abreast of similar rights in other kindred democracies,” the judges said then.
“The question, which therefore pertinently arises, is whether in Botswana at the present time the circumstances demand the decriminalisation of homosexual practices as between consenting adult males or put somewhat differently, is there a class or group of gay men who require protection under the constitution?
“The question (is) whether the time has arrived when society in Botswana requires that Botswana should follow those other countries where decriminalisation of homosexual practices has occurred.”
In 2003, the answer to that question was no. Kelemi and other gay rights advocates are hoping a fresh challenge will result in the answer being yes.
In pursuit of a ‘yes’ ruling, BONELA and LeGaBiBo have been lobbying lawmakers and traditional leaders with a view to gaining public traction on the matter and shifting hard-held paradigms.
The battle for decriminalisation, lobbyists believe, will be won in the public arena first and thus prompt lawmakers to review the Penal Code.
“Over the years, we have been sensitising legislators, dikgosi and religious leaders about the importance of decriminalising homosexual acts,” Kelemi says.
“You don’t just go to Parliament and change the law. You need to create consensus within the community.”
The BONELA director reveals that the former Member of Parliament for Serowe North, Ramadeluka Seretse invited lobbyists to address a kgotla meeting in his constituency in order to gauge ordinary citizens’ take on homosexuality.
The activists scored a major victory when they addressed the House of Chiefs in 2012 and secured both the tacit and the outright support from some traditional leaders.
“We had a workshop with them and one of them right at the beginning stood up and said ‘I will never support these people.’
“By the end of the workshop, he was our champion. He always sends me messages on Facebook asking when the next workshop will be held and how they can support us.”
Some traditional leaders, it is understood, have become resigned to the presence of homosexuality within their subjects and have either chosen to accept them or turn a blind eye.
Members of Parliament, on the other hand, raised some hackles in 2013 when a nationwide consultation on new HIV/AIDS legislation touched on a debate on homosexuality and the recognition and inclusion of gay community members in the fight against the epidemic.
Any hints of cooling attitudes were abruptly dissipated when one legislator said homosexuality was directly linked to the spread of HIV/AIDS and should be fought.
The former Kgalagadi South MP, John Toto, made headlines when he told a gathering in his constituency that homosexuality was growing at a rate of 12 percent per annum.
Toto said then: “Research shows that homosexuality is on the rise in cities and towns and is slowly trickling into rural areas.”
BONELA and LeGaBiBo know that such viewpoints are major threats to their fight to, firstly, gain public recognition and then push for legislative review. In many minds and as argued by the Attorney General, registering LeGaBiBo is providing gays a free reign to practice an illegal act.
A registered LeGaBiBo, critics say, will go into schools, colleges and universities and ‘recruit’ or convert young minds, swelling its membership base and using the resultant high numbers to agitate for a review of the Penal Code.
“LeGaBiBo does not recruit people into homosexuality,” says Kelemi.
“It works with people who already identify themselves as such and the notion that people can be recruited baffles me.
“It’s natural for you to wake up and feel attracted to a woman, the same way someone else can wake up and feel attracted to their own gender.
“It’s not about choice and recruitment does not apply.
“God made us differently and we should accept that we are different,” she says.
With their case for decriminalisation partly hanging on the size of the population, LeGaBiBo hopes it can secure state funding for research to establish the population of the gay community.
At present, the closest approximate came from a sample survey conducted by the Ministry of Health in 2013 when it sought to establish HIV/AIDS prevalence rates among men who have sex with other men.
That study estimated that Gaborone and Francistown had a combined total of 781 men who have sex with other men.
However, Kelemi explains, the figure is far from the actual population of gays as men who have sex with other men include married men and those experimenting.
“We need to invest more resources to determine the actual numbers of these communities. We have not looked at the numbers of gays, lesbians and transsexuals.
“How do you expect people to come out and say ‘I’m gay’ when they are oppressed by the law.”
LeGaBiBo has 500 members mostly in urban areas and mainly in Gaborone, Francistown, Palapye, Mahalapye and other major towns. About 95 percent of the organisation’s members are youths, mainly in tertiary level education.