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High Court decriminalises gay sex

In a historic turn of events this week, the Botswana High Court judge, Justice Michael Leburu made a ruling which finally decriminalised same sex sexual act, rendering the colonial laws on gay sex unconstitutional.

The matter had been brought before court for determination by a 21 year old University of Botswana student, Letsweletse Motshiediemang, meanwhile Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), was admitted as amicus curiae (friend of the court) in the matter. Motshiediemang was challenging the constitutionality of sections 164(a), 164(c) and 167 of the Botswana Penal Code. These provisions criminalised same-sex sexual conduct between consenting adults in Botswana and imposes a maximum sentence of seven years imprisonment.

When delivery the judgement, Justice Leburu said the court has determined that it is not the business of the law to regulate private consensual sexual encounters between adults.He emphasized that the same applies to issues of private decency and/or indecency between consenting adults. “Any regulation of conduct deemed indecent, done in private between consenting adults, is a violation of the constitutional right to privacy and liberty,” Leburu said.

Leburu recited that there must remain, as already determined a realm of private morality and immorality which should not be the province of the law, particularly where there is no victim or complainant and when such conduct is consensual.

“No justification has been given by the respondent as to why a person’s right to privacy and autonomy ought to be curtailed, relating to consensual acts done in private.in any event, such curtailment of fundamental rights cannot be justified within our democratic dispensation, nor do such abridgement satisfy the proportionality test.”

“It is hereby accordingly ordered that the word “private be and is hereby severed and excised from section 167 of the penal code,” said Leburu. The judgement delivered stated that it is the decision of the court that sections 164(a): 164(c) and 165 of the penal code are declared ultra vires the constitution, in that they violate section 3 (liberty, privacy and dignity): section 9 (privacy) and section 15 (discrimination).

Leburu stated that: “Dignity speaks, it has its sound. Without dignity human life loses its value. To deny each person his or her humanity is to deny them right to life. Human dignity is harmed by unfair treatment. Sexual intercourse is not just for purposes of procreation but also an expression of love. There is nothing justifiable about discriminating against members of the LGBT society. Discrimination has no place in this world. All human beings are born equal. Homosexuality is another form of sexuality that has been suppressed for years.”

Leburu’s court ruling received international prominence as Botswana joined other countries where gay sex is legal. The ruling comes barely a month after Kenya High Court upheld that gay sex is criminal offence. In a recent statement released by the Botswana Democratic Party(BDP), President Mokgweetsi Masisi who was cited in the judgment to have had a great impact in influencing the decriminalisation of same sex during the launch of the commemoration of 16 days against violence on women and children when he said: “There are also many people of the same sex relationships in this country, who have been violated and also suffered in silence for fear of being discriminated, just like other citizens, they deserve to have their rights protected.”

BDP chairperson of Communication and International Relations, Kagelelo Kentse said the recent statement pertaining to the LGBT case ruling was in its entirety solely the view of the party and not that of the state.  “What the state decides to do with the ruling remains the prerogative of the State,” he said.  

Information reaching this publication reveals that senior government prosecutors are working around the clock to advice the Attorney General on the next move of the state. This publication has learnt that despite the victory by the Lesbians, Gays, Bi-sexual and Transgender groups’ chances of the state

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Gov’t shy to shame failing ministers

22nd February 2021
Morwaeng

Minister of Presidential Affairs, Governance and Public Administration, Kabo Morwaeng together with Permanent Secretary to the President (PSP) Elias Magosi, this week refused to name and shame the worst performing Ministries and to disclose the best performing Ministries since beginning of 12th parliament including the main reasons for underperformance.

Of late there have been a litany of complaints from both ends of the aisle with cabinet members accused of providing parliament with unsatisfactory responses to the questions posed. In fact for some Botswana Democratic Party (BDP) backbenchers a meeting with the ministers and party leadership is overdue to address their complaints. Jwaneng-Mabutsane MP, Mephato Reatile is also not happy with ministers’ performance.

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Bokamoso, Gov’t in P10M womb removal suit

22nd February 2021
Bokamoso

Bokamoso Private Hospital is battling a P10 million legal suit for a botched fibroids operation which resulted in a woman losing an entire womb and her prospects of bearing children left at zero.

The same suit has also befallen the Attorney General of Botswana who is representing the Ministry of Health and Wellness for their contributory negligence of having the unlawful removal of a patient, Goitsemang Magetse’s womb.

According to the court papers, Magetse says that sometimes in November 2019, she was diagnosed with fibroids at Marina Hospital where upon she was referred to Bokamoso Private Hospital to schedule an appointment for an operation to remove the fibroids, which she did.

Magetse continues that at the instance of one Dr Li Wang, the surgeon who performed the operation, and unknown to her, an operation to remove her whole womb was conducted instead.
According to Magetse, it was only through a Marina Hospital regular check-up that she got to learn that her whole womb has been removed.

“At the while she was under the belief that only her fibroids have been removed. By doing so, the hospital has subjected itself to some serious delictual liability in that it performed a serious and life changing operation on patient who was under the belief that she was doing a completely different operation altogether. It thus came as a shock when our client learnt that her womb had been removed, without her consent,” said Magetse’s legal representatives, Kanjabanga and Associates in their summons.

The letter further says, “this is an infringement of our client‘s rights and this infringement has dire consequences on her to the extent that she can never bear children again”. ‘It is our instruction therefore, to claim as we hereby do, damages in the sum of BWP 10,000,000 (ten million Pula) for unlawful removal of client’s womb,” reads Kanjabanga Attorneys’ papers. The defendants are yet to respond to the plaintiff’s papers.

What are fibroids?

Fibroids are tumors made of smooth muscle cells and fibrous connective tissue. They develop in the uterus. It is estimated that 70 to 80 percent of women will develop fibroids in their lifetime — however, not everyone will develop symptoms or require treatment.

The most important characteristic of fibroids is that they’re almost always benign, or noncancerous. That said, some fibroids begin as cancer — but benign fibroids can’t become cancer. Cancerous fibroids are very rare. Because of this fact, it’s reasonable for women without symptoms to opt for observation rather than treatment.

Studies show that fibroids grow at different rates, even when a woman has more than one. They can range from the size of a pea to (occasionally) the size of a watermelon. Even if fibroids grow that large, we offer timely and effective treatment to provide relief.

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Masisi warned against a sinking Botswana

22nd February 2021
Ndaba GAolatlhe

The Alliance for Progressives (AP) President Ndaba Gaolathe has said that despite major accolades that Botswana continues to receive internationally with regard to the state of economy, the prospects for the future are imperilled.

Delivering his party Annual Policy Statement on Thursday, Gaolathe indicated that Botswana is in a state of do or die, and that the country’s economy is on a sick bed. With a major concern for poverty, Gaolathe pointed out that almost half of Botswana’s people are ravaged by or are about to sink into poverty.  “Our young people have lost the fire to dream about what they could become,” he said.

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