The Landmark LM V AG Case And The Socially Argued "Morality"

Lesego Nswahu Nchunga | Monday June 17, 2019 14:48

That’s enough to make us halt our regular programming, and address this, at least for a week, before going back to our multidisciplinary approach to adolescence, wouldn’t you say? 

With a full bench, the Botswana High Court held at Gaborone, on June 11, 2019 handed down a groundbreaking, landmark, and I dare say revolutionary judgement that is sure to change lives. It is one of those times that one must commend the judiciary for upholding justice. Phased with the apparent task of balancing morals and the law, the Court rose to the occasion, proclaiming the independence of the judiciary, and the role it plays in ensuring not only that the law is administered, but also that the dispute on the morality argument, against the human rights position, is ensured.  Very early on in the judgement, the Court acknowledged the need to note that “what is morally good or bad to one person in the realm of sexual orientation, choice and preference, may not necessarily be so to another person, hence a happy and shining reflection of our plurality, diversity, inclusivity and tolerance to both majority and minority rights.” 

I think it’s crucial that we dwell on this for some time. The argument on morality is one that is often made in legal matters, particularly, where sexuality is in question. The process by which moral attitudes arise, change or progress, spread, erode or vanish is known as moral dynamics. It governs the impact of ethical or unethical acts, regarding the likelihood of behaving ethically in a subsequent occasion.

There are concepts of moral-balancing and moral-consistency. One, moral balancing, which is essentially the idea that if someone acts ethically or unethically, that may decrease the likelihood of their engaging in the same type of behaviour, is often said to be dynamic, changing over time.

Moral consistency on the other hand, which essentially dictates that behaving in a certain way whether ethical or unethical, will increase likelihood of maintaining that type of behaviour later. Of course, these are mindset considerations, accruing perhaps from reinforcements of ideas or ideals that ensure how individuals deal with ethical uncertainty. It is really difficult to ignore the responses of Batswana, which they premise largely on their morality.

Two things are apparent. There is need for a social discourse that engages the public in the actual social impact of the changes in legislation as are ordered by the Court. This will perhaps engage a moral introspection of Botswana’s society particularly on the ease with which stigma and discrimination are perpetuated, against people of diverse sexualities, identities and expressions. Simply put, a social reflection by the nation. The second is the cognisance and acknowledgement that …

As regards the first, following the Court decision, there were many people who voiced their opposition to the Court’s decision, on the basis of the decision being unchristian. The Court dealt with these points. I propose however that we interrogate the origins of the arguments made. The Court did this in considering the historical origins of the offence of sodomy and sexual intercourse against the order of nature.

The judges, sensitively acknowledging that many oppositions to the application are religious in nature, dwelt into the Biblical provisions of the cities of Sodom and Gomorrah, destroyed for their immorality, as well as the provisions in the book of Leviticus and the book of Romans.

It is on this background that the provisions were incorporated into English law, which was integrated into Botswana through the colonisation of the nation, better known as the protection of the state by the United Kingdom. Sodomy was deemed morally unacceptable by the British rule. Most supporters of Sodomy laws deem it unAfrican. The history of this is never explored beyond the advent of the introduction of Christianity to Africa. Sodomy laws were historically premised on moral acceptability.

Morality is often argued as deriving from the very source of life; as the “originating in the ultimate creative principle of life and all its manifestations.” Most morality proponents seem to assume the belief that morality is a static and not variable construct – homogenous if you will – and therefore applying equally to all.

Rounding this consideration back to the earlier discussion on moral consistency and moral balance, it is vital to note that morality, in fact, varies from person to person, and from society to society. The moral conscience of a society is tested by various factors and elements. Sometimes and perhaps often, the actions the three arms of government in a democratic society are a determining factor, on the pulse of the society.

Over the past decade and a half, Botswana has made tremendous alterations to various policies and laws through the Executive and the Legislative arms of government, amendments that acknowledged that there is largely discrimination and stigma against persons who engage in same sex relationships.

The case brought to light scientific evidence that this derives from the criminalising laws that prevail, from colonial legacy. This makes one wonder about Batswana public’s engagement with the reality of colonialism in our history, and how that impacted what we now deem moral.