Following an application by some Zion Christian Church (ZCC) members in Botswana challenging the church’s disregard and violation of its own constitution, another member who sits on the church’s lawyers’ panel launched a fresh application this week challenging that the 2009 Botswana constitution is fraudulent.
“The applicants have instituted legal proceedings against ZCC relying on the 2009 constitution that is not operational or not in use and as such the said constitution does not govern the affairs of ZCC in Botswana. I will further pray for the Honourable court to declare the said constitution null and void and of no force and effect,” Jost Sinvula Isaac who is a member and lawyer of ZCC declared in court papers the Weekend Post is in possession of.
Prior, 11 members of the church being Tshiamo Tladi, Khumo Gaorengwe, Mogomotsi Bogosi, Stanley Lejone, Daniel Mathibe, Lesetse Othamo, Mmusi Moeng, Mmatli Lopale, Lebogang Bose, Faneck Bareki and Tony Joseph last week dragged the church together with its Bishop Dr. Barnabas Edward Lekganyane to court saying the ZCC local branch is flouting on its constitution of 2009 – which is currently the subject of the “storm”.
Isaac, who sits in the ZCC attorneys’ panel instituted a fresh application this week as a member of the church and argued that the submission of the 2009 constitution by ZCC to the Registrar of Societies was not necessary as the church had a South African church constitution that was in use since 1994.
He said: “it is my humble submission that the 1994 constitution is the lawful and operational constitution of the ZCC church in Botswana as it has never been repealed or invalidated by any lawful process.”
Accordingly, he emphasized that the “2009 Botswana constitution is illegal, unlawful and a nullity in law and of no force and effect”.
When supporting his arguments the lawyer said there are new facts which he intends to bring before court, which have not been brought forth by any of the parties in the 11 members versus ZCC, Bishop Lekganyane, pending before the court. He added that he discovered the facts after thorough research, making inquiries and perusing the church file at the Registrar of Societies.
Sometimes in the early 1990’s, he explained, the church applied for registration of its constitution and “exemption” from registration under the Societies Act. The exemption was then approved and they were issued with an exemption certificate. In applying for exemption, he said the church filed its constitution from South Africa, which was received by the Registrar of Societies on the 5th July 1994.
“The church was thus confirmed as a society exempted from registration in terms of the Act and that it was headquartered and controlled outside the country (South Africa), with a universal constitution that applied to all its members and was registered accordingly.”
A perusal of the church file at the Registrar of Societies’ office reveals that sometimes there was a misconception on the part of officials of the church as to its registration status in Botswana.
Indications are that at some stage the church engaged the Office of the President (OP) to have the church exempted from registration, when in fact the church was ‘already’ exempted from registration.
Therefore, the ZCC member stated further that it seems that the confusion that resulted in the registration of the 2009 constitution began with a public announcement that was made by the Registrar of Societies in 2008.
In terms of that notice, all churches which were registered using the constitutions of their ‘mother churches based outside the country’ were now required to file ‘local’ constitutions and a deadline was set for that purpose.
“This request was not made in terms of any provisions of the Societies Act. I must add that this public announcement was not addressed to the ZCC. While the legal propriety of this notice was itself questionable, it was nonetheless not necessary for the church to concern itself with the notice as it was an exempted society which had a constitution in place.”
Other churches that are exempted such as the Roman Catholic Church did not concern themselves with the notice and they did not file local constitutions.
In the end, the ZCC lawyer said a local constitution was developed and on June 2009, the 2009 constitution was submitted to the Registrar of Societies.
He pointed out that the registration status of the church is a matter that has not been ventilated at all by all the parties to the main application (11 ZCC members) “yet it is at the centre of the controversy in these proceedings”.
According to Isaac, “when this 2009 constitution was submitted, what was overlooked is the fact that the church had a constitution that was in use and further that it was exempted from registration, and that under no circumstances could the church be required to submit local constitution.”
He added that the filing of the 2009 constitution therefore would have resulted in the Exemption of the church being rescinded or cancelled since the preamble of the said constitution states that the church is constituted in terms of Section 5 of the Societies Act.
“When the 2009 constitution was filed with the Registrar of Societies, the church awaited response from the Registrar’s office in relation to the registration of such constitution but to date there is no such response and my understanding is that in the absence of any meaningful response the said constitution was never formally registered for it to be effective.”
The ZCC member also expressed that he is greatly aggrieved by the 2009 constitution because it creates a different ZCC than the church itself. “The church will effectively have two parallel seemingly distinct constitutions since the 2009 constitution did not repeal the 1994 constitution nor was it registered.”
The constitution does not make any reference to the status of the church as an exempted society, suggesting that it was submitted under a misapprehension of facts as to the registration status of the church, he highlighted.
In the 2009 constitution, it is stated that: “the headquarters of the church is said to be Lot 20462, Gaborone. This has never been the headquarters of the church. To the best of my knowledge, the headquarters of the church is Zion city Moria in Limpopo Province of South Africa,” the lawyer clarified.
The Executive Council is entrusted with powers that have hitherto been the preserve of the Church Council, and the 2009 constitution as it is if adopted will hinder the smooth running of the church in Botswana, he highlighted.
“I therefore intend to raise arguments questioning the validity of this 2009 constitution. The proceedings will have to involve the Registrar of Societies, through the Attorney General.”
“I have raised these issues with the church. In particular I have raised the issue of invalidity of the 2009 constitution with the General Secretary of the church as well as lawyers panel of the church,” he added.
However, Isaac said his pleas for the church to raise these issues have not been headed to. “I understand this to be because the members of the lawyers’ panel directly responsible for this case hold views that are different from mine,” he stated. “To my understanding the church has therefore not been advised to raise these issues in the manner I seek to raise them. I respect this divergent of views, and now ask this court to give me a hearing.”
“As a member of the church, which is a very big international church, and further as an official of the church where the applicants (11 members) in the main action worship, I have an interest in ensuring that the church is governed properly and I consider the raising of these issues to be my responsibility and duty.”
Going forward, he observed that a decision on this matter will also clear any confusion to the registration status of ZCC, the constitution that is in use and the responsibilities of the church in terms of the Societies Act.
Isaac’s new application citing the Botswana church constitution as “a fraud” will be argued still before Justice Michael Mothobi on 19th August 2016 and it will determine whether the previous matter on violation of the local church constitution falls off or not.
In the 11 members’ case, ZCC was represented by Advocates Soraya Skhassim (SC) and Lenette Pillay from South Africa and Uyapo Ndadi of Ndadi Law Firm in Botswana sat in for the aggrieved 11 ZCC members while in the fresh application due in August, attorney Jost Sinvula Isaac represented himself.
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.