LeGaBiBO registration judgement: A lawyer’s perspective
HUMAN RIGHTS LAWYER: Dick Bayford
Following the Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo) court victory this week a legal mind based in Gaborone, has expressed reservation on the Court of Appeal judgement saying there is nothing new in it.
According to the lawyer, Martin Dingake of Dingake Law Partners, “this must be stated of the judgment, that there have been no advances since the Kanane case. In other words there is nothing materially different between LeGaBiBo and Kanane cases.”
In Kanane and LeGaBiBo the court said there is/was nothing unlawful with being gay. Kanane also said there was legally nothing to prevent gay men and lesbians from associating, a ratio repeated in LeGaBiBo.
Dingake told Weekend Post in an exclusive interview after judgement that both decisions reiterate the point that neither heterosexuals nor homosexuals is mentioned in the Constitution; and heterosexuals mentioned at the exclusion of homosexuals.
“So LeGaBiBo confirmed what we already knew in Kanane. There could be nothing further from the truth,” he said while stressing that “it was always clear that the refusal to register LeGaBiBo as a society was irrational and illegal.”
The esteemed attorney wondered: how is the court then advancing the rights of LeGaBiBo beyond recognition, which by law had been hitherto permissible, without permitting them to express their sexuality? He rhetorically asked.
He explained that the question of change (not to discriminate on the basis of sexual orientation) has been left to the legislature and it remains for courts to enforce the law as is.
“So I think, although the appeal did not relate to this question, this is where the real issue has always been,” Dingake pointed out.
He noted that, so the question must be asked, “what is new that is emerging from LeGaBiBo case?” He said this in light of some observers who argue that LeGaBiBo is progressive insofar as it adopts the Oakes case test in determining the reasonableness of the limitation of a constitutional right. “That development is noted, but it is not new,” he maintained to this publication.
The reasonable test as embodied in Chavinduka case stated by Gubbay CJ is no different from one formulated in Oakes case and adopted in LeGaBiBo case, the top notch lawyer highlighted. He added that many scholars and jurists in our jurisdiction have embraced it in referenced law journals and reported cases. The High Court in the essential services case, he said approved Oakes case and went further to rely on Gubbay CJ decision in Chavinduka on constitutional limitations.
The Judgement that LeGaBiBo is free to register was reached and delivered on Wednesday 16th March 2016 by a panel of 5 CoA Judges being CoA Judge President Justice Ian Kirby, Justices Lord Hamilton, Craig Howie, Monametsi Gaongalelwe and Isaac Lesetedi.
“The decision of the Minister (and of the Director/ Registrar) refusing the registration of LeGaBiBo is set aside,” and “the Registraar of Society is to take such steps as may be necessary to register LeGaBiBo as a society in terms of the Societies Act Cap 18: 01,” the panel statement declared.
According to Dingake, in light of the judgement, what he found very worrying and disturbing, and which is being repeated and increasingly becoming entrenched is Court of Appeal's prevarication over constitutional reliefs saying there is a discretion. “This constitutional relief phobia is a source of concern to say the least. It stagnates the growth of our jurisprudence in constitutional law,” he lamented.
However the maverick lawyer noted that the LeGaBiBo decision is most welcome, “I am sure even more so by and amongst the LGBT community itself.” For a community, no matter how small or big, to wallow in such deafening silence, exclusion and persecution and for so long, no doubt it provides some much needed relief, Dingake highlighted.
“Homosexuals are not homosexuals for the sake of it. Why must heterosexuals do nothing with and about their circumstances beyond merely stating their status?” He continued: “interestingly the question is not being asked, if asked, is not being answered, as to what is the effect of being gay or lesbian.”
He said he hope though, that his criticism of LeGaBiBo case notwithstanding that the LGBT community will be emboldened to now focus on this aspect of permitting them further to express their “sexuality.”
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Nigerians, Zimbabweans apply for Chema Chema Fund
Fronting activities, where locals are used as a front for foreign-owned businesses, have been a long-standing issue in Botswana. These activities not only undermine the government’s efforts to promote local businesses but also deprive Batswana of opportunities for economic empowerment, officials say. The Ministry of Trade and Industry has warned of heavy penalties for those involved in fronting activities especially in relation to the latest popular government initiative dubbed Chema Chema.
According to the Ministry, the Industrial Development Act of 2019 clearly outlines the consequences of engaging in fronting activities. The fines of up to P50,000 for first-time offenders and P20,000 plus a two-year jail term for repeat offenders send a strong message that the government is serious about cracking down on this illegal practice. These penalties are meant to deter individuals from participating in fronting activities and to protect the integrity of local industries.
“It is disheartening to hear reports of collaboration between foreigners and locals to exploit government initiatives such as the Chema Chema Fund. This fund, administered by CEDA and LEA, is meant to support informal traders and low-income earners in Botswana. However, when fronting activities come into play, the intended beneficiaries are sidelined, and the funds are misused for personal gain.” It has been discovered that foreign nationals predominantly of Zimbabwean and Nigerian origin use unsuspecting Batswana to attempt to access the Chema Chema Fund. It is understood that they approach these Batswana under the guise of drafting business plans for them or simply coming up with ‘bankable business ideas that qualify for Chema Chema.’
Observers say the Chema Chema Fund has the potential to uplift the lives of many Batswana who are struggling to make ends meet. They argue that it is crucial that these funds are used for their intended purpose and not siphoned off through illegal activities such as fronting. The Ministry says the warning it issued serves as a reminder to all stakeholders involved in the administration of these funds to ensure transparency and accountability in their disbursement.
One local commentator said it is important to highlight the impact of fronting activities on the local economy and the livelihoods of Batswana. He said by using locals as a front for foreign-owned businesses, opportunities for local entrepreneurs are stifled, and the economic empowerment of Batswana is hindered. The Ministry’s warning of heavy penalties is a call to action for all stakeholders to work together to eliminate fronting activities and promote a level playing field for local businesses.
Meanwhile, the Ministry of Trade and Industry’s warning of heavy penalties for fronting activities is a necessary step to protect the integrity of local industries and promote economic empowerment for Batswana. “It is imperative that all stakeholders comply with regulations and work towards a transparent and accountable business environment. By upholding the law and cracking down on illegal activities, we can ensure a fair and prosperous future for all Batswana.”
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Merck Foundation and African First Ladies mark World Health Day 2024
Merck Foundation, the philanthropic arm of Merck KGaA Germany marks “World Health Day” 2024 together with Africa’s First Ladies who are also Ambassadors of MerckFoundation “More Than a Mother” Campaign through their Scholarship and Capacity Building Program. Senator, Dr. Rasha Kelej, CEO of Merck Foundation emphasized, “At Merck Foundation, we mark World Health Day every single day of the year over the past 12 years, by building healthcare capacity and transforming patient care across Africa, Asia and beyond.
I am proud to share that Merck Foundation has provided over 1740 scholarships to aspiring young doctors from 52 countries, in 44 critical and underserved medical specialties such as Oncology, Diabetes, Preventative Cardiovascular Medicine, Endocrinology, Sexual and Reproductive Medicine, Acute Medicine, Respiratory Medicine, Embryology & Fertility specialty, Gastroenterology, Dermatology, Psychiatry, Emergency and Resuscitation Medicine, Critical Care, Pediatric Emergency Medicine, Neonatal Medicine, Advanced Surgical Practice, Pain Management, General Surgery, Clinical Microbiology and infectious diseases, Internal Medicine, Trauma & Orthopedics, Neurosurgery, Neurology, Cardiology, Stroke Medicine, Care of the Older Person, Family Medicine, Pediatrics and Child Health, Obesity & Weight Management, Women’s Health, Biotechnology in ART and many more”.
As per the available data, Africa has only 34.6% of the required doctors, nurses, and midwives. It is projected that by 2030, Africa would need additional 6.1 million doctors, nurses, and midwives*. “For Example, before the start of the Merck Foundation programs in 2012; there was not a single Oncologist, Fertility or Reproductive care specialists, Diabetologist, Respiratory or ICU specialist in many countries such as The Gambia, Liberia, Sierra Leone, Central African Republic, Guinea, Burundi, Niger, Chad, Ethiopia, Namibia among others. We are certainly creating historic legacy in Africa, and also beyond. Together with our partners like Africa’s First Ladies, Ministries of Health, Gender, Education and Communication, we are impacting the lives of people in the most disadvantaged communities in Africa and beyond.”, added Senator Dr. Kelej. Merck Foundation works closely with their Ambassadors, the African First Ladies and local partners such as; Ministries of Health, Education, Information & Communication, Gender, Academia, Research Institutions, Media and Art in building healthcare capacity and addressing health, social & economic challenges in developing countries and under-served communities. “I strongly believe that training healthcare providers and building professional healthcare capacity is the right strategy to improve access to equitable and quality at health care in Africa.
Therefore, I am happy to announce the Call for Applications for 2024 Scholarships for young doctors with special focus on female doctors for our online one-year diploma and two year master degree in 44 critical and underserved medical specialties, which includes both Online Diploma programs and On-Site Fellowship and clinical training programs. The applications are invited through the Office of our Ambassadors and long-term partners, The First Ladies of Africa and Ministry of Health of each country.” shared Dr . Kelej. “Our aim is to improve the overall health and wellbeing of people by building healthcare capacity across Africa, Asia and other developing countries. We are strongly committed to transforming patientcare landscape through our scholarships program”, concluded Senator Kelej.
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Interpol fugitive escapes from Botswana
John Isaak Ndovi, a Tanzanian national embroiled in controversy and pursued under a red notice by the International Criminal Police Organization (Interpol), has mysteriously vanished, bypassing a scheduled bail hearing at the Extension 2 Magistrate Court in Gaborone. Previously apprehended by Botswana law enforcement at the Tlokweng border post several months earlier, his escape has ignited serious concerns.
Accused of pilfering assets worth in excess of P1 million, an amount translating to roughly 30,000 Omani Riyals, Ndovi has become a figure of paramount interest, especially to the authorities in the Sultanate of Oman, nestled in the far reaches of Asia.
The unsettling news of his disappearance surfaced following his failure to present himself at the Extension 2 Magistrate Court the preceding week. Speculation abounds that Ndovi may have sought refuge in South Africa in a bid to elude capture, prompting a widespread mobilization of law enforcement agencies to ascertain his current location.
In an official communiqué, Detective Senior Assistant Police Commissioner Selebatso Mokgosi of Interpol Gaborone disclosed Ndovi’s apprehension last September at the Tlokweng border, a capture made possible through the vigilant issuance of the Interpol red notice.
At 36, Ndovi is implicated in a case of alleged home invasion in Oman. Despite the non-existence of an extradition treaty between Botswana and Oman, Nomsa Moatswi, the Director of the Directorate of Public Prosecution (DPP), emphasized that the lack of formal extradition agreements does not hinder her office’s ability to entertain extradition requests. She highlighted the adoption of international cooperation norms, advocating for collaboration through the lenses of international comity and reciprocity.
Moatswi disclosed the intensified effort by law enforcement to locate Ndovi following his no-show in court, and pointed to Botswana’s track record of extraditing two international fugitives from France and Zimbabwe in the previous year as evidence of the country’s relentless pursuit of legal integrity.
When probed about the potential implications of Ndovi’s case on Botswana’s forthcoming evaluation by the Financial Action Task Force (FATF), Moatswi reserved her speculations. She acknowledged the criticality of steering clear of blacklisting, suggesting that this singular case is unlikely to feature prominently in the FATF’s assessment criteria.