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Kamal loses big in Masisi legitimacy case

In what was supposed to be a landmark case in Botswana where Lobatse parliamentary aspirant Kamal Jacobs who lost Botswana Democratic Party (BDP) primaries was challenging the legitimacy of President Mokgweetsi Masisi as the party leader took a bitter twist on Wednesday when High Court Judge Michael Mothobi ruled that the sitting President is immune to suit in civil proceedings.

This follows a decision upheld by the Court of Appeal in Motswaledi versus BDP in 2009 where they held that the then President Ian Khama could not be sued because he enjoys total immunity from criminal and civil suits. Motswaledi, who was suspended from the party, was seeking reinstatement and to be declared the party’s parliamentary candidate at Gaborone Central. The court in unison agreed that section 41(1) granted Khama immunity, stating that the wording of the said provision were clear and unambiguous.

While arguing the case, Kamal Jacobs’ lawyer Kagisano Tamocha said the orders were sort against Masisi in his private capacity as a member of the 1st respondent (BDP). Tamocha argued that former president Lt Gen Ian Khama who is cited as the 3rd respondent in the matter, is the substantive and lawful President of the BDP. Tamocha asked the court to make a finding as whether Masisi holding the office of the presidency of the BDP in accordance with the constitution of the BDP.

In Motswaledi case the court stated immunity was there to insure that the president, while carrying out his duties, is not embarrassed by dealing with lawsuits and civil claims. “The meaning of section 41(1) is that when the President acts in a capacity other than his capacity as head of state, his act is to be categorised as an act in his private capacity,” the judgement states.

Tamocha argued that Masisi would either have to withdraw his immunity under section 41 of the country’s constitution to allow for a proper determination of the question brought forth in relation to the presidency of the BDP. While delivering his ruling Michael Mothobi said the applicant’s decision to have the 3rd respondent, former President Lt Gen Ian Khama as a joinder remained a conundrum.  Mothobi said Khama has no interest in the matter thus the benefit of his evidence ought to have been sought.

Judge Mothobi said the attorney general cited as Amicus curiae or friend of the court   led by Otlaadisa Kwape was not partisan and provided an invaluable insight in the matter. Mothobi also dismissed the 7th respondent in the matter who is cited as Reginal Chairperson (Botswana Democratic Party- Southern Region) on grounds of Locus Standi. The 7th respondent was sued in his capacity as the regional secretary of the BDP Southern Region Chairmen and whose better and further particulars are to the Applicant unknown.

Michael Mothobi also ruled that the matter is not urgent. He said Kamal and his lawyers failed to supply material and demonstration of imperial evidence. “You failed to show us course why the substantial redress cannot be afforded, no methods of interdiction. You approach must be holistic”, said Mothobi. He however said the former President can still be joined in the matter.

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Transgender persons in Botswana live a miserable life

23rd November 2020
Transgender persons

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.

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Khato Civils fights back, dares detractors

23rd November 2020
Khato-civil

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.

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UDC petitioners turn to Saleshando

23rd November 2020
Dumelang Saleshando

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.

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