A Court of Appeal (CoA) panel of five judges; Justices Isaac Lesetedi, Monametsi Gaongalelwe, Leatile Dambe, Singh Walia and Zibani Makhwade have weighed in on the controversial issue of determining the principal residence of electorates in Botswana.
The Judges concurred with Justice Walia when delivering the oral arguments in court this week in Gaborone that this principal residence issue is only unique to Botswana as many Batswana have more than one residencies. “This is only peculiar to Botswana. In the context of Botswana, there is always been more than 1 residents, hence emphasize of a principal residence,” he said.
He continued: “remember we are dealing with what principal residence means. What are the guidelines of determining a principal residence? Is it just a matter of occupation? What did the law giver intend to do? If you have more than one, you then go for the principal one, and what does that mean?”
The matter came after one Mothusi States Maribe appealed a High Court ruling in the principal residence case which was in favour of Sefhare/Ramokgonami legislator Dorcas Makgatho. The objection in essence is that Makgato is not registered at her “principal residence” with the meaning and context of section 67 (3) a. of the constitution. Maribe, the objector has queried the registration of Makgato as an electorate on the basis that she has registered at Bobedi in Chadibe while her principal residence is Gaborone where she is staying permanently because of work.
The appeal came as a result of the High Court ruling recently that voters are entitled to select which one of their several residences, as it’s a norm in Botswana, they deem most important for purposes of registration for elections. “Therefore the appeal comes subsequent to the Court a quo’s decision to interpret the word ‘residence’ and to further decide that voters with more than one residence are entitled at law to choose which residence they prefer to in registering for elections,” the lower court, had ruled.
The grounds of appeal for Maribe is that the High Court has misdirected itself and erred in law and in fact in determining in Makgato case that principal residence basically means a voter’s most important place of residence. Maribe also, in the appeal, queries the Judges conclusion that: “the principal residence under section 67 (3) of the constitution means that prospective voters are entitled to select which one of their several residences they deem most important for purposes of registering for elections.”
He also stated in the court papers that the High Court also erred in law and in fact by determining that it is the voter who at the end of the day elects which one amongst Makgato’s residences, she considers to be principal residence for purposes of registering for the elections. According to the court papers, the appeal is also centered around the court a quo judges’ erring in law by determining that Makgato has clearly established through her affidavit, her historical, social, cultural sentimental and family bonds and that explains why she registered to vote thereafter.
“They also erred at law and in fact in determining that Makgato is a parliamentary candidate when same does not appear ex facie the pleadings,” Maribe through lawyer maintained in the court papers. He is also appealing the ruling that although section 10 (3) of the Electoral Act empowers the registration officer to determine the entitlement of the prospective voter at any particular polling station, in the case of a voter having more than one residence, such a determination would entirely depend on the voter’s preference.
In the heads of argument, attorney representing the appellant (Maribe), Martin Dingake of Dingake Law Partners submitted that the constitutional requirements of section 67(3) a. of the constitution of Botswana, at simple, to register at the principal residence, and must be found to mean what it means. “Having more than one residence, you will register and be allowed to register only at your principal residence, and not any place of your choice,” Dingake pointed out in the papers.
He continued to point out that it must be emphasized that the place where one feels most connected to, historically, socially, culturally, sentimentally or even where their family arises cannot be a factor used to determine their principal residence. “It therefore remains to be a place where a prospective voter mostly reside or where she spends most of her time,” he maintained in the heads.
The attorney stressed that therefore a prospective voter, in this instance Makgato, cannot therefore elect which of her several residences she would prefer registering at for elections as that would mean that they are usurping and acting contrary to the role of the registration officer as empowered by section 10 (3) of the Electoral Act. In reply, the respondents (Makgato)’s lawyer, Simwe Petuho Mwinya who is a senior partner at Kebabonye Mwinya attorneys then highlighted that constricting electorates (Makgato) their right to vote in a place of necessity is against the public interest.
“I therefore submit that the application of the literal rule will result in the deterioration of the ‘true intent and spirit’ of the constitution. This affecting Makgato, the public at large and the future generations,” he stated. He further said that the current socio-economic context in 2019 is quite different from the time that the constitution was written, or better yet, amended. “The law is ever evolving to suit the people in the time that they are living, thus it can be concluded that the purpose of the law is to represent the spirit of the people living in that time,” Mwinya explained.
It is the Mwinya’s submission that the right to vote which in this jurisdiction is granted and defined by the constitution, is so fundamental that a broad and liberal interpretation must be given to it. He stressed: “it is therefore our submission that the courts’ interpretation should be tied to a person’s state of mind with respect to where that person regards as ‘home.’ Where they have a social interest.” According to the attorney, the essence of people returning to their home villages is to choose the person who would in their eyes would enrich and better the village and the community as a whole.
“Restricting a person’s right to vote to their ‘principal residence’ using the literal rule of statutory interpretation, would limit their right to vote in constricting them to that particular place, bettering the constituency of another at the detriment of the place they regard as home,” he highlighted. Thus, he added that taking away their right to contribute to the development of their village which is in essence what voting is, is wrong.
“A person voting in a place that they do not regard as home but have instead made it a residency should not constitute a vote more especially where their right to vote is needed, indeed where they believe that they are from, the place they call home,” he concluded. Meanwhile, the 5 empaneled CoA Judges then reserved a ruling to the 23rd August 2019.
An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.
In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.
In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.
Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.
More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.
At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.
The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).
Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).
International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.
In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”
The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”
According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.
In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.
The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.
LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.
“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.
Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.
CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”
Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.
About ten (10) Umbrella for Democratic Change (UDC) parliamentary candidates who lost the 2019 general election and petitioned results this week met with UDC Vice President, Dumelang Saleshando to discuss the way forward concerning the quandary that is the legal fees put before them by Botswana Democratic Party (BDP) lawyers.
For a while now, UDC petitioners who are facing the wrath of quizzical sheriffs have demanded audience with UDC National Executive Committee (NEC) but in vain. However after the long wait for a tete-a-tete with the UDC, the petitioners met with Saleshando accompanied by other NEC members including Dr. Kesitegile Gobotswang, Reverend Mpho Dibeela and Dennis Alexander.