Govt appeals the 2014 gay ruling
Mpho Mokwape | Thursday January 7, 2016 09:32
The appeal, scheduled for this month’s session, follows a landmark judgement of the Gaborone High Court Justice, Terrence Rannowane, declaring that the 20 applicants were entitled to assemble and associate under the name and style of LEGABIBO.
Rannowane had also declared that the applicants were entitled to have the group LEGABIBO registered as a society and that in a democratic society freedom of association, assembly and expression are important values duly protected by the Constitution.
The court dispute arose in March 2014, when 20 members of LEGABIBO filed a case before the High Court asking the court to review the decision by the Director of Civil and National Registration and the Minister of Labour and Home Affairs to refuse to register the organisation as a society.
The government’s main contention then was that LEGABIBO’s mandate was not in the public interest and that it only wanted registration so it can uphold and re-enforce illegal and criminal activities.
The then state attorney, the late Advocate Moatlhodi Marumo, had denied that LEGABIBO’s rights have been violated and had argued that Section 7 (2) of the Societies Act in any event constitutes a justifiable limitation of the applicant’s constitutional rights.
“We all ought to know that LEGABIBO was not registered because homosexuality acts are illegal in the country according to the Penal Code and that the court does not make laws as it stands,” said Marumo.
LEGABIBO had argued that their main reason to want to be registered as a society was that it aimed to provide an opportunity for lesbians, gays and bisexuals to form part of an association which will provide them with information on human rights and advocate for their rights, particularly access health services.
The organisation’s then legal representative, Unity Dow, now the minister of Education and Skills Development, had argued that the refusal to register LEGABIBO violated the right of freedom of association, which was a right regarded as supremely important by the country.
She had asked the government that Section 7(2) of the Societies Act, which allows the refusal of registration under certain circumstances, should accordingly be interpreted strictly to avoid unjustified infringement of the right to freedom of association.
Dow said had the director and the minister applied their minds to the application, they would have sought to confirm the assumptions about whether Section 7 (2) was applicable, by requiring additional information in terms of Section 6 (3) of the Societies Act. “We are making an application for a group of individuals to have an association to share their opinions in a collective manner not for people to go have sex which seems to be the state’s arguments for this case,” submitted Dow.