In what could be a letdown for the LGBTI community in Botswana, Justice Leatile Dambe missed the application of the landmark case in which transgender woman, Tshepo Ricki Kgositau wants to challenge the refusal of the Registrar of National Registration to change the gender marker on her identity document.
Justice Dambe who is presiding over the case was said to be on leave of absence. Kgositau, 30, wants the gender marker on her identity document changed from Male to Female. Members of the Lesbians, Gays, Bisexual, Transgender and Intersex (LGBTI) thronged the court gallery in numbers in support of “Ricky.” High Court through Justice Mothobi announced the postponed of the case to 12 December in which Dambe will have occupied her seat. At the heart of the matter, Ricky is challenging the refusal of the Botswana government, department of Registrar of National Registration to change the gender marker on her identity document as a transgender woman.
Currently the gender marker illustrates that Ricky is a male. According to the court papers, Ricky was assigned a male sex at birth, since a very early age she has identified as a woman and subsequently was socialised as one by her family. “The applicant requests that the High Court orders the respondents (government) to change the gender marker on her identity document (Omang) from ‘male’ to ‘female’. This is a simple request which is vital to the protection of the applicant’s human dignity, well-being and security,” papers point out.
It is understood that the court application includes supporting evidence on affidavit from her mother, siblings and relatives, as well as psychological and medical evidence to the effect that her innate gender identity is and has since an early age always been female and that her family has embraced her and loved her as a woman. “The applicant (Ricky) submits that sex consists of more than chromosomal or biological factors and that her identity document should reflect and give precedence to her gender identity, which only became apparent after her birth,” papers highlight.
Why Ricky wants to change her omang from male to female
Ricky submits in the papers that the incorrect reflection of her gender as ‘male’ instead of ‘female’ on her identity document is causing her considerable and ongoing emotional distress while increasing her vulnerability to abuse and violence from state and non-state actors. She submits that the refusal to change her gender marker violated her rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.
What the High Court will determine on the matter..
She therefore requests the High Court to consider whether the government’s refusal to issue her with a new identity document that correctly reflects her gender identity as ‘female’ constitutes a violation of her constitutional rights. She also wants the court to consider whether the government’s justification for the limitation of the Ricky’s constitutional rights is reasonable and justifiable. The transgender woman argues that the National Registration Act provides the framework by which the State can change the Omang of the applicant to reflect her gender identity and uphold her constitutional rights.
“The Act allows the Registrar to change the particulars of a registered person in circumstances where these particulars materially affect the person’s registration. The applicant (Ricky) argues that the State has a duty to fully realise the constitutional protection of her dignity and having an identity document that correctly reflects her gender identity is fundamental to realising the dignity and security of the applicant.”
Lessons from previous and related cases…
In March 2016, the Botswana Court of Appeal gave an important judgment (Attorney General v Rammoge) which emphasised the human rights apply to every person. “Members of the gay, lesbian and transgender community, although no doubt a small minority, and unacceptable to some on religious or other grounds, form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity,” the Judge then stated. Ricky’s case is believed to be a built up on the gays and lesbians judgment and seeks to ensure that the rights of transgender persons are also recognised – in practice as well.
What is gender identity and transgender?
Gender identity is one's personal experience of one's own gender. Gender identity can correlate with assigned sex at birth, or can differ from it completely. All societies have a set of gender categories that can serve as the basis of the formation of a person's social identity in relation to other members of society. Transgender is denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex. The applicant, Tshepo Ricki Kgositau, is represented by Lesego Nchunga of Nchunga & Associates, with the support of the Southern Africa Litigation Centre while the government is represented by the Attorney General.
Government is currently sitting on 4 400 vacant posts that remain unfilled in the civil service. This is notwithstanding the high unemployment rate in Botswana which has been exacerbated by the recent outbreak of the deadly COVID-19 pandemic.
Just before the burst of COVID-19, official data released by Statistics Botswana in January 2020, indicate that unemployment in Botswana has increased from 17.6 percent three years ago to 20.7 percent. “Unemployment rate went up by 3.1 percentage between the two periods, from 17.6 to 20.7 percent,” statistics point out.
Leading commercial bank, First National Bank Botswana (FNBB), expects the central bank to sharpen its monetary policy knife and cut the Bank Rate twice in the last quarter of 2020.
The bank expects a 25 basis point (bps) in the beginning of the last quarter, which is next month, and another shed by the same bps in December, making a total of 50 bps cut in the last quarter. According to the bank’s researchers, the central bank is now holding on to 4.25 percent for the time being pending for more informed data on the economic climate.
An audit of the accounts and records for the supply of food rations to the institutions in the Northern Region for the financial year-ended 31 March 2019 was carried out. According to Auditor General’s report and observations, there are weaknesses and shortcomings that were somehow addressed to the Accounting Officer for comments.
Auditor General, Pulane Letebele indicated on the report that, across all depots in the region that there had been instances where food items were short for periods ranging from 1 to 7 months in the institutions for a variety of reasons, including absence of regular contracts and supplier failures. The success of this programme is dependent on regular and reliable availability of the supplies to achieve its objective, the report said.
There would be instances where food items were returned from the feeding centers to the depots for reasons of spoilage or any other cause. In these cases, instances had been noted where these returns were not supported by any documentation, which could lead to these items being lost without trace.
The report further stressed that large quantities of various food items valued at over P772 thousand from different depots were damaged by rodents, and written off.Included in the write off were 13 538 (340ml) cartons of milk valued at P75 745. In this connection, the Auditor General says it is important that the warehouses be maintained to a standard where they would not be infested by rodents and other pests.
Still in the Northern region, the report noted that there is an outstanding matter relating to the supply of stewed steak (283×3.1kg cans) to the Maun depot which was allegedly defective. The steak had been supplied by Botswana Meat Commission to the depot in November 2016.
In March 2017 part of the consignment was reported to the supplier as defective, and was to be replaced. Even as there was no agreement reached between the parties regarding replacement, in 51 October 2018 the items in question were disposed of by destruction. This disposal represented a loss as the whole consignment had been paid for, according to the report.
“In my view, the loss resulted directly from failure by the depot managers to deal with the matter immediately upon receipt of the consignment and detection of the defects. Audit inspections during visits to Selibe Phikwe, Maun, Shakawe, Ghanzi and Francistown depots had raised a number of observations on points of detail related to the maintenance of records, reconciliations of stocks and related matters, which I drew to the attention of the Accounting Officer for comments,” Letebele said in her report.
In the Southern region, a scrutiny of the records for the control of stocks of food items in the Southern Region had indicated intermittent shortages of the various items, principally Tsabana, Malutu, Sunflower Oil and Milk which was mainly due to absence of subsisting contracts for the supply of these items.
“The contract for the supply of Tsabana to all depots expired in September 2018 and was not replaced by a substantive contract. The supplier contracts for these stocks should be so managed that the expiry of one contract is immediately followed by the commencement of the next.”
Suppliers who had been contracted to supply foodstuffs had failed to do so and no timely action had been taken to redress the situation to ensure continuity of supply of the food items, the report noted.
In one case, the report highlighted that the supplier was to manufacture and supply 1 136 metric tonnes of Malutu for a 4-months period from March 2019 to June 2019, but had been unable to honour the obligation. The situation was relieved by inter-depot transfers, at additional cost in transportation and subsistence expenses.
In another case, the contract was for the supply of Sunflower Oil to Mabutsane, where the supplier had also failed to deliver. Examination of the Molepolole depot Food Issues Register had indicated a number of instances where food items consigned to the various feeding centres had been returned for a variety of reasons, including food item available; no storage space; and in other cases the whole consignments were returned, and reasons not stated.
This is an indication of lack of proper management and monitoring of the affairs of the depot, which could result in losses from frequent movements of the food items concerned.The maintenance of accounting records in the region, typically in Letlhakeng, Tsabong, and Mabutsane was less than satisfactory, according to Auditor General’s report.
In these depots a number of instances had been noted where receipts and issues had not been recorded over long periods, resulting in incorrect balances reflected in the accounting records. This is a serious weakness which could lead to or result in losses without trace or detection, and is a contravention of Supplies Regulations and Procedures, Letebele said.
Similarly, consignments of a total of 892 bags of Malutu and 3 bags of beans from Tsabong depot to different feeding centres had not been received in those centres, and are considered lost. These are also not reflected in the Statement of Losses in the Annual Statements of Accounts for the same periods.