Lobatse High Court Judge Michael Leburu scheduled a recent case in which a gay man has approached the court for an order that Section 164 (a) and (c) and Section 165, which criminalise sodomy, be declared unconstitutional.
He argues that they infringe various provisions of the Constitution, particularly because; they are not made for the good order and governance of Botswana, they are void for vagueness, they discriminate against homosexuals, they interfere with his right to liberty and the right not to be subjected to inhuman and degrading treatment.
Following the legal submissions, the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was admitted as amicus curiae (a friend of the court) on November 1, 2017.
On February 7, 2018, LEGABIBO’s chief executive officer, Maithamako Anna Mmolai-Chalmers, filed an affidavit to elaborate on the research relating to the LGBT persons in Botswana. She avers that Sections 164 and 165 of the Penal Code contribute to perpetuating stigma and negatively impact on access to public services, including access to health care services.
Referring to the expert affidavit of Associate Professor Alexander Muller of Cape Town University, the impugned provisions are “a form of stigma and contribute to the high levels of violence, disparities in mental health status and to the barriers to health care experienced by lesbian, gay, bisexual, transgender and intersex people living in Botswana, including men who have sex with men”.
Mmolai-Chambers also makes reference
She further avers that the National AIDS Coordinating Agency (NACA) similarly observed in 2015 that legal and human rights barriers affect: MSMs access to service providers’ interventions against stigma and discrimination, distribution of condoms and lubricants in prisons and distribution of lubricants targeted for key populations like MSM.
On Friday, February 23, 2018, the Attorney General asked the High Court to grant him more time to respond to LEGABIBO’s affidavits, stating that “LEGABIBO’s affidavit and supporting documentation are bulky and contain new and complex evidence, which require more time and resources for researching and preparation.
It raises broad constitutional issues and very complex foreign research findings, which require the engagement of an independent expert in matters of homosexuality to assist.”
The court then gave the Attorney General until March 16, 2018 to file his affidavit, and rescheduled the matter to May 31 for arguments.
The applicant is represented by Dinokopila Lekgowe Attorneys, whilst LEGABIBO is represented by Rantao Kewagamang Attorneys.