Director of Proceeding, thank you for your kind introduction. It is wonderful to be amongst my brethren and sisters of the Commonwealth Legal heritage. I would like to acknowledge, with humility and respect, that this meeting is being held on the traditional lands of the First Australians.
These includes the Jagera and the Turrbal people, the Nunukul of Stradbroke Island, the Joondaburri of Bribie Island, the Ningy Ningy of Moreton Bay, the Gubbi Gubbi of the Sunshine Coast and Yagera and Ugarapul from Rosewood out towards Helidon. I pay my respect to them, their elders past and present.
Director of Proceedings, I bring you greetings and well wishes from the mighty continent of Africa, and my own country Botswana – and in many respects still an Island of sanity in a sea of turbulence.
I have been assigned to explore two related issues, the rights of the Indigenous persons, with a focus on the San of Botswana and an overview of the right of the LGBT community generally. These are amongst the “tough” issues our modern courts are increasingly called upon to resolve. I will address the above issues in the order mentioned above.
The International Labour Organisation (ILO) Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries of 1989, is an international instrument which encapsulates and reinforces global consensus around standards of indigenous rights.
In 2007, the UN General Assembly adopted the United Nations Declaration of the Rights of Indigenous People (UNDRIP) as ‘the only Declaration in the UN which was drafted with the right-holders themselves, the Indigenous People.
The Preamble, specifically reflects on the ‘historical injustices [that indigenous people have suffered] as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.
UNDRIP does not explicitly make provision for socio-economic rights. Article 1 provides that indigenous people enjoy all human rights and fundamental freedoms recognised in the Universal Declaration of Human rights.
The Preamble affirms that indigenous people are equal to all other people while recognising their right to be, and consider themselves to be, different. Article 3 and 4 provides for the right of self-determination and the right to ‘autonomy or self-government in matters relating to their internal and local affairs’.
Article 5 of UNDRIP also provides indigenous people with the right to maintain their political, legal, social and cultural institutions while also retaining their right to participate in the political, economic, political, social and cultural life of the State.
The effect of Article 5 is two-fold: it provides indigenous people with the right to participate in and develop their own institutions; and 2) it allows indigenous people to participate in the political institutions of the State generally.
The African Charter applies generally to all humans and peoples and does not only protect the right of individuals, but also recognises and protects the rights of groups such as indigenous people.
The African Commission, the judicial body tasked with interpreting the scope of the Charter, affirmed in Centre for Minority Rights Development (Kenya) v Kenya, that the Charter also recognises the rights of indigenous peoples. This case is significant because it is the first judgement from the African Commission to address the rights of indigenous people.
Article 1 of the Charter obligates Member States to recognise and protect the rights enshrined in the Charter and to adopt domestic legislation or other measures to give effect to these rights. In some African countries, international treaties are only enforceable once, as a prerequisite, an enabling Act of Parliament is passed.
However, the Commission has held that a State which has not enacted an enabling Act giving effect to the Charter is still bound by the rights and duties in the Charter in terms of the principle of Pacta sunt servanda; ‘agreements are binding and are to be implemented in good faith.’
(a) Socio-Economic Rights
Article 16 provides for the right of indigenous peoples to receive medical attention when they are sick and places a duty on the State to ‘protect the health of their people and to ensure that they receive medical attention when they are sick’. The Charter also makes provision for property rights. Linked to this right is the right to freely dispose of one’s wealth and natural resources. Article 21 grants individuals who have been dispossessed of their property the right to lawfully recover the property and the right to adequate compensation for such dispossession.
(b) Civil and Political rights
In terms of Article 3 and 19 of the Charter, everyone has the right to be treated equally before the law. Article 5 provides that everyone has the right to human dignity, the right to participate in their cultural life and the State has the duty to protect the traditional values of the community. Article 13 states that every citizen shall have the right to participate in the government of his/her country. This right may be exercised directly or freely by chosen representatives.
The Rights of the San in Botswana
The San or Khoesan, make up a marginalised Indigenous minority of some 100,000 people in Botswana, Namibia and South Africa, with a majority of them living in Botswana. Despite Botswana’s remarkable economic growth over the years, this particular community remain marginalised and very few San students successfully go through the education system.
There is a huge gap in terms of access to education, health and employment for the San and the general population. The lack of the use of Khoe and San languages as medium of instruction in primary schools has been identified as one of the primary factors that inhibit school performance.
One of the major challenges to realisation of the rights of the San is the failure of government to recognise the Indigenous status of the San. The official position of government is that all the inhabitants of Botswana, saves for Immigrants, are indigenous.
This San’s contemporary state of economic depravity arises out of the historical loss of vast amounts of land and natural resources. A significant amount of their tribal land was lost during the colonial period, and this state of affairs was not significantly rectified by the post colonial government.
The land tenure legal regime that was passed by the post colonial government perpetuated the colonial land tenure system. These laws that include the Tribal Territories Act of 1933 are still in force today.
The Tribal Territories Act demarcates tribal land in Botswana that is available for communal use into eight tribal territories named after the dominant Tswana tribes; and while the Act does not confer ownership rights on the named tribes, the exclusion of the other tribes is a point of discontent, as it highlights the perception that the groups that are not named are discriminated against and not recognised.
The San have been present in Southern Africa for over 20, 000 years. They are hunter-gatherers by nature and are in the minority as their basic rights have been consistently violated over time.
The Central Kalahari Game Reserve (CKGR) was established in 1961 to conserve the wildlife of the area and “to provide a residence for the “San” people who were already living there before the creation of the CKGR.” It is estimated that at the time there were approximately 3 500-5 000 San and Bakgalagadi occupying the CKGR.
In 1997, 2002 and 2005, the government of Botswana forcibly removed most of the San people from their ancestral land in CKGR and also terminated the source of water in the reserve.
Forced Removals from the Reserve
Between May-June of 1997, the Government of Botswana started the process of relocating the Basarwa from the reserve to nearby settlements outside of the reserve. In 2002 the government shut down the water points which provided the residence of the reserve with its only source of water; it terminated all services which it previously provided to the community; and arrested those who had been previously granted a license to hunt.
Upon relocation some people were compensated for the relocation by way of money, seeds, small plots of land and a few cattle.
As a result, the members of the community approached the court, in the case of Sesana v. The Attorney General, for an order declaring that they had been forcibly removed from their ancestral land.
The court held, unanimously, that the applicants were in lawful possession of the land, which was linked to their identity as “Bushmen”. In relation to the termination of services, the court held that the State did not act unlawfully nor did it act unconstitutionally.
However, it held that the State’s refusal to issue hunting licenses and to allow applicants to enter the reserve was unlawful and unconstitutional. Many years after the Sesana judgment, the San are still fighting for their right to enter the reserve.
For many indigenous people, land is a link between the living and the ancestors and therefore forms part of their cultural and/or spiritual identity. Both the African Charter and UNDRIP recognise the importance of land to indigenous people.
The right of access to water
Around 1989, the De Beers Company agreed to allow residents of the game reserve use of a borehole, which the government maintained. In 2002, the government stopped maintaining the borehole, which was found to be lawful in the Sesana case.
In Matsipane Mosetlhanyane and Others v The Attorney General, an appeal of the decision of the high court, was brought by the Basarwa in an attempt to gain access to the borehole at their own expense. The court highlighted the dire living conditions of the residents of the reserve and the issues they face with limited access to water. One of the resident attested that they were always “looking for any roots and other edible matter from which [they could] extract even a few drops of water,” and that the lack of water rendered them “weak and vulnerable to sickness.”
The appellants argued that State’s refusal to allow them use of the borehole, or any other borehole in the reserve, amounted to degrading treatment contrary to section 7 of the Constitution.
The State argued that the borehole was drilled for the purposes of prospecting for minerals. The court found and concluded that the appellants had the right to use the existing borehole and sink one or more boreholes within the reserve at their expense.
The role of the court in enforcing the rights of the San The
The LGBT Community
The United Nations Declaration of Human Rights
Article 2 of the UNDHR entitles everyone to the freedoms set out in the Declaration regardless of race, colour, sex, language, religion or other status etc. It protects both listed and unlisted categories of persons. While it explicitly prohibits discrimination on the basis of race, colour and language, it also implicitly prohibits discrimination against the LGBT community, in respect of the term ‘other status.’ Members of the LGBT community have successfully invoked this ‘other status’ category to seek protection of their rights. Article 7 provides equality before the law and equal protection of the law. Article 16 provides for the right to marry, which includes the right to found a family.
In November 2011, The United Nations High Commissioner of Human Rights issued a report called the Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their Sexual Orientation and Gender Identity. The report specifies the obligation that States have towards LGBT citizens under international human rights law. It states that ‘[t]he criminalization of private consensual homosexual acts violates an individual’s right to privacy under international human rights.”
The African Charter
Article 2 of the Charter provides that every individual is entitled to the rights and freedoms guaranteed in the Charter ‘without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national, social origin, fortune, birth, or other status. Furthermore, Article 3 provides for equality before the law. Article 2 does not expressly include sexual orientation, however, the phrase ‘every individual’ and ‘or other status’, indicates an open list, therefore sexual orientation may be included as one of the prohibited grounds of discrimination.
The Situation of LGBTI around the World
Due to political considerations, legislators are often unwilling to take the necessary steps to repeal laws that criminalise same-sex intimacy or discriminate against LGBT persons. On the contrary, anti-gay and homophobic rhetoric seems to have become a key talking point of most elections and an issue for rousing sensational sentiments in the absence of substantive democratic dividends. In the absence of the will to redress the violations against LGBT persons through positive, non-discriminatory policies, the courts have become the last resort for appropriate remedy. As an independent, non-political branch of the State, the judiciary, in exercising its mandate as the interpretative organ has an important role in nullifying laws that violate the bills of rights of constitutions
Across the Commonwealth, courts have risen to this challenge and nullified penal provisions and other laws that discri minate against LGBT persons. Below, I sample, some of the inspiring examples.
In Botswana: March 2016, the Court of Appeal held that the refusal by the government to register LEGABIBO, an organization of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, was unconstitutional. The Court of Appeal upheld the November 2014 decision of the Botswana High Court on this matter.
In Kenya: October 2014, the High Court in Nairobi ordered the Kenya National Examination Council to issue Audrey Mbugua, a trans woman, a new high school certificate bearing “no gender”. Audrey had contested the change of gender on her certificate in court, but since Kenya did not yet recognise third gender, the judge ruled the certificate should bear no gender.
In Malawi: January 2014, the Malawian High Court heard a petition by a leading LGBTI organisation, Centre for the Development of People (CEDEP), to obtain a review of jail sentences for three gay men imprisoned for homosexual acts. CEDEP challenged the fundamental principles of the law criminating homosexuality. The Independent Malawi Law Society, representing over 300 lawyers, backed the petition. In July 2014, Solicitor-General and Secretary of Justice Janet Chikaya-Banda affirmed to the United Nations Human Rights Committee that these laws would not be enforced pending the High Court review of their constitutionality and, subsequently, the Government of Malawi formally announced a suspension of enforcement of anti-gay penal code provisions. The government emphasized its commitment to freedom of association and expression for groups working to advance lesbian, gay, bisexual and transgender (LGBT) rights.
In Uganda: August 2014, the Constitutional Court annulled the notorious Uganda Anti-Homosexuality Act on a technicality. The legislature passed the law without the requisite quorum.
In Belize: August 2016, the Supreme Court of Belize struck down the sections of the penal code which criminalise same-sex intimacy as unconstitutional.
Trinidad and Tobago: April 2018, the High Court of Justice in Trinidad and Tobago ruled that the country’s laws criminalizing same-sex intimacy between consenting adults are unconstitutional.
India: In April 2014, the Supreme Court of India upheld the Constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Indian Constitution, which guarantee the right of equality, the right against discrimination, freedom of speech and expression, and the right of life with dignity respectively.
Pakistan: In 2009, a land mark ruling in the Supreme Court extended benefits and equal protection to Pakistan’s transgender community. As a result, transgender people can now vote and run for political office. That decision has led progressively to the increased recognition of the rights of trans persons in Pakistan and culminated in the Government’s issue of a transgender passport in 2017. Last week, the Supreme Court (SC) of India ruled that consensual adult gay sex is not a crime – holding that sexual orientation is natural and people have no control over it. The SC observed that consensual sex between adults in a private space, which is not harmful to anyone cannot be denied as it is a matter of individual choice. The Court said, what society thinks, should not impact on people rights – in the words of the SC, “social morality cannot violate the rights of even one single individual”.
Some of the documented human rights
violations against LGBT persons include –
a) In the family space – violation of the right of physical integrity and bodily autonomy, verbal and physical violence, subjection to cruel and inhuman treatment.
b) In the community – violations of the right to dignity and physical integrity through bullying in school, verbal and physical assaults, denial of access to healthcare, employment, housing (arbitrary eviction from rented accommodation without cause or due process;
c) In the hands of law enforcement officials – arbitrary arrest and detention, cruel and inhumane treatment including forced anal examination, sexual assault in police cells, torture, extortion and blackmail [especially for those who fear losing their means of livelihood of ousted], lack of due process in handling complaints, or bringing before courts;
d) In the hands of other government departments – denial of freedom of expression, association and assembly through refusal to register organisations, denial of access to information by refusal to provide comprehensive sexuality education in school and the attendant implications for public health and personal security, denial of healthcare services especially at public health facilities, among others.
What judges can do?
Judges can ensure that due regard is given to international human rights standards and the best available evidence, including scientific evidence especially in matters relating to sexuality, sexual orientation and gender identity. As this is an evolving area of law, the courts, have often benefited from inviting experts to make submissions to court as amica curia. It is also important that the judges should be seen to acknowledge the humanity of the people before their courts, regardless of sexual orientation and gender identity.
It is the duty of the judges to breathe life into Constitutions. A Constitution is but a promissory note. It is for the judges to effect the promise of the Constitution. They can do so by embracing one morality: the morality of the Constitution. Not their individual morality. Without effecting the promise of Constitutions, these sacred documents, ultimately become just a piece of paper. In my experience, ultimately, to paraphrase justice Learned Hand, real justice and the rule of Law lies in the minds and hearts of man and women of good will; when it dies there, no Constitution, no Law and no Court can save it.
Although Botswana has made some strides in developing the San people by extending basic services such health and education to them, a lot still remains to be done.
And notwithstanding that the Constitution recognizes the rights to equality of every person, ‘equality’ remains distant to the San people on many fronts including health, education and participation in employment opportunities, (in the public service and private sector) and in business. Going forward, it is pertinent, to reset the relationship between government and the San, by acknowledging the San as an indigenous group; by cultivating a productive working relationship with the San and involving them in decision – making processes. It seems to me that for this engagement to bear fruit it needs to be based on the aspirations and priorities of the San people – nothing for them without them being involved. We must acknowledge the mistakes of the past and seeks to re-dress historical injustices through Law, and to do so speedily.
With respect to the rights of the LGBTI Community it is imperative that judges must effect the promise of the Constitution and disregard their personal opinions, accepting as they should that their own personal opinions, social morality and religious views (if any) cannot override universal human rights and fundamental freedoms.
*Hon Justice Prof. Oagile Bethuel Key Dingake PhD, is a Justice of Supreme & National Courts of Papua New Guinea. He is a Judge of the Residual Special Court of Sierra Leone. He is a former Judge of the High Court of Botswana. He is also Co-Chair of the African Think Tank on HIV, Health and Social Justice and President of Africa Judges Forum on HIV, Human Rights and the Law. This is a speech delivered at Commonwealth Magistrates and Judges’ Association, Brisbane Conference Centre, Brisbane, Australia recently