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CoA Judges reserve judgement in LEGABIBO case

Publishing Date : 11 February, 2016

Author : UTLWANANG GASENNELWE

Court of Appeal have reserved judgement in a case in which government is appealing a decision by High Court that Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) should register their organization.

“Judgement will be delivered on the day to be announced. But it is unlikely that it will be handed down on this court session,” CoA president Kirby declared to a fully packed court gallery comprising of LEGABIBO activists, sympathisers and those following the marathon case with keen interest.   

The case was presided by a panel of 5 Court of Appeal Judges comprising of President Justice Ian Kirby together with Justices Craig Howie, Monametsi Gaongalelwe, Lord Hamilton and Issac Lesetedi.

Previously, High Court Judge Justice Terrence Rannowane has ruled that the decision of the Minister of Labour and Home Affairs Edwin Batshu to refuse to the registration of LEGABIBO was in contravention of section 3 of the constitution of Botswana as it denies them equal protection of the law.

Subsequent to LEGABIBO victory, government appealed the case and the CoA raised more questions while seeking for clarity on constitutionality of gay people forming an association “to advocate for establishment of a legal framework to reach those in society that are legally and socially marginalized such as lesbians, gays and bisexuals.” Section 3 was heavily relied upon in the matter.

The said section 3 (of the constitution) provides that: “whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his or her race, place of origin, political opinions, colour, creed or sex, but subject to respect for the right and freedoms of other and to public interest to each and all of the following namely; a)life, liberty, security and protection of the law, b)freedom of conscience, of expression and of assembly and association.

“Does gays and lesbians have constitutional right and protection? Or they can just be discriminated against? Are they not protected by section 3?” Court of Appeal president Ian Kirby continuously asked the AG.  

Appellants Attorney General was represented by State Counsel Otsile Rammidi while Attorney Dick Bayford, Shimi Phage and Lesego Nchunga were representing LEGABIBO.

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