The week was a historic one for the Republic, with a full bench of the High Court issuing a progressive judgement striking down sections of the Penal Code that have criminalised homosexual conduct for years.
Sixteen years after the Court of Appeal ruled that Botswana was not yet ready for the decriminalisation of same sex acts, the High Court, in a compelling 132-page judgement on Tuesday, ruled that Batswana were, in fact, ready. The nation is only just beginning to absorb the impact of this judgement and Batswana across the country, of different ages, locations, occupations, beliefs and leanings are slowly beginning to come to terms with what happened on Tuesday.
And therein lies the nub. This week’s developments, whether one welcomes them or rejects them, are not the ideal way change should be brought about in society.Ideally, when society, even a minority within society, begins agitating for change, these demands are carried up the political structures from councillors to legislators, weighed and debated at every point until votes are done in the National Assembly.
Parliament has the room to even break itself into a smaller committee to carry out further national consultations before effecting any changes in the law. Through such a process, Batswana are not only sensitised about the proposed legal changes, but are afforded an opportunity to input if they so wish. This is what happened when government wished to tighten liquor laws a decade ago and when the legislation was eventually changed, some members of society were disgusted, but prepared. In the matter at hand, however, the process towards changing of the law was turned on its head, starting with the change of the law and following up with sensitisation of society. The reason is that Parliament and Ntlo ya Dikgosi, the two primary institutions for legislative change, have
That Parliament and Ntlo ya Dikgosi should have been the head of these legislative changes is seen in the text cited by the Court of Appeal 16 years ago when it noted that “in a modern liberal democracy it is ordinarily the task of the democratically elected legislature to decide what conduct should be treated as criminal, so as to attract penal consequences. In making such a decision Parliament must inevitably take a moral position in tune with what it perceives to be the public mood”. Parliament evaded its responsibility and the High Court, as stated by Justice Michael Leburu, had the jurisdictional potestas or power to intervene and pronounce judgement. The law has been changed. Legislators and Dikgosi now find themselves with the tall task of explaining what this means to ordinary Batswana, setting expectations and dealing with whatever fallout may arise from the upending of the tried and tested system of change.
“Big government doesn’t work! It just doesn’t work!”
- Lou Barletta