Govt ordered to recognise LEGABIBO

Mpho Mokwape | Thursday March 17, 2016 15:20

 

In a stern judgment yesterday, CoA Judge President, Ian Kirby said the constitution did not criminalise homosexuality and that there was nothing unlawful about advocating for a change or changes in the law.

Kirby explained that advocacy is equally a democratic right of every citizen as politicians do it everyday on behalf of their constituents.

“Advocacy against criminalisation of abortion, or against the death penalty are typical examples. There is no suggestion and nor should there be, that those advocating for such are potential abortionists or murderers themselves,” he said.

He explained that as held by the trial court in a case that was before Justice Terrence Rannowane, it was unreasonable for the then Minister of Labour and Home Affairs to refuse registration on grounds that LeGaBiBo was likely to be used for unlawful purposes.

Kirby said the Minister’s apparent suspicions provided no basis for refusing registration of a society in order to prevent its members from committing or promoting the commission of criminal offences.

“It is clear that the Minister’s decision interferes in the most fundamental way with the LeGaBiBo members’ right to form an association to protect and promote their interests. That decision will only be constitutionally acceptable, and thus lawful if it is a proper decision in terms of Section 7 of the Societies Act and is also justified by one of the limitations placed in Section 13 of the constitution on the right to freedom of association and assembly,” he said.

Kirby maintained that neither the constitution nor sections in the Societies Act, nor any other law confers upon the minister an unrestricted power either to refuse something on the ground that such refusal was reasonably justifiable in a democratic society. He noted that the provisions of the Societies Act was accepted by both parties that it was unobjectionable in constitutional terms and that there was no section thereof which entitles the Registrar or the minister to refuse a society on grounds of public morality. “His concern was that registration might lead to or encourage the members of LeGaBiBo to break the law. I have already held that concern or reason for refusal was irrational on the evidence before us, so there can be no question of his decision being necessary in the interests of public order, here the social ill sought to be addressed by the minister could not have been homosexuality as such.” he said.

Moreover, Kirby said homosexuality was not unlawful in the country and therefore could not be seen as a social ill, although some religious and other groups may take a different view.

He explained that LeGaBiBo’s intention was to advance the interests of gays, lesbians and trans-sexual persons in the country and generally to educate the public on human rights aspects of sexual orientation as they are concerned with public health issues, such as HIV/AIDS, and to protect themselves from violation of their human rights.

“That cannot be seen as encouraging illicit same sexual relationships, members of the LeGaBiBo community are as vulnerable as anyone else to the dangers of rape or sexual violation and LeGaBiBo seeks to network regionally and internationally to promote their interests and be an advocacy group,” he said.