An organisation for homosexuals and sexual minority group, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) has maintained that the society was never intended to further or support any criminality as alleged by the state.
In a matter at the Court of Appeal where Government seeks to overturn a High Court judgement that ruled in favour of LEGABIBO, the NGO says the state’s contention that LEGABIBO offends the provision of law and was contrary to good order was entirely baseless and without any evidence.
LEGABIBO said the state’s decision to refuse registration was based only on perceptions, speculation and conjecture without any evidence.
“To limit the society’ rights to freely associate based merely on speculation that it will lead to ‘popularisation of acts criminalised’ is simply not enough, is irrational and unjustifiable infringement of their right to freedom of association,” he said.
Bayford argued that the fact that certain acts were criminalized was irrelevant to the issue of rights of lesbian, gay and bisexual persons to associate freely with others based on their shared identities, interests, values and concerns.
He explained that freedom of association was the right guaranteed in the constitution irrespective of a person’s sexual orientation.
“The mere fact that the objectives and opinions of LEGABIBO might be unpopular and controversial is not enough to limit their right to freely associate with like minded individuals,” he explained.
LEGABIBO submitted that the ability of citizens to associate in a manner recognised by the state and to share their opinions in a collective manner was fundamental to a democratic society and that the state has an obligation to support the exercise of these rights especially minority groups.
“The constitution provides a sensitive and dignified framework within the rights and interests of minority and vulnerable individuals must be protected.
He said for all its worth LEGABIBO could be advocating for abstinence rather than encouraging sexual acts through the use of condoms as alleged by the state and that there was no law in the country that prohibits anyone from being gay, lesbian or bisexual in their sexual orientation nor any law that permits the suspension, restriction or suppression of constitutional rights of such individuals.
Otsile Rammidi representing the State, said the registration of the society could be used to advocate for something unlawful which had been already been criminalised under the constitution.
Rammidi argued that a reasonable decision maker similarly positioned could conclude that the registration and consequent activities of the society could lead to popularisation of acts criminalized under the Penal Code.
He said Batswana, as a society was still conservative about same sex sexual acts arguing that the society was advocating for rights of those already practicing it to be protected, which may bring different views and reactions from society.
On November 14, 2014 the High Court ruled and declared that the decision of the Minister to refuse registration of LEGABIBO contravened sections of the constitution.
Justice Terrence Rannowane declared further that the applicants were entitled to have a group LEGABIBO registered as a society.
The state on Friday appealed the decision at the Court of Appeal before a bench of five judges led by Justice Ian Kirby. Judgment has been reserved to a date to be announced.