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LeGaBiBO registration judgement: A lawyers 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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The curtain came down at the PAP session with pomp and FUNFAIR

23rd March 2023

It was pomp and funfair at the Pan-African Parliament (PAP) on March 18 as the African Cultural Music and Dance Association (ACUMDA) brought the curtains down on the PAP session with a musical performance. 

 

The occasion was the celebration of the Pan-African Parliament Day (PAP Day) which commemorated the inauguration of the first Parliament of the PAP on 18 March 2004 at the African Union Headquarters in Addis Ababa, Ethiopia.

 

The celebrations took place at the seat of the Parliament in Midrand to “reflect on the journey” as the institution turns 19. The event sought to retrace the origin and context of the establishment of the PAP.

 

The celebrations included musical performances by ACUMDA and a presentation by Prof. Motshekga Mathole of the Kara Heritage Institute on “Whither Pan-Africanism, African Culture, and Heritage.”

 

The PAP Day was officially launched in 2021 to educate citizens about the Continental Parliament and ignite conversations about its future in line with its mandate.

 

The establishment of the PAP among the AU organs signalled a historical milestone and the most important development in the strengthening of the AU institutional architecture. It laid solid groundwork for democratic governance and oversight within the African Union system and provided a formal “platform for the peoples of Africa to get involved in discussions and decision-making on issues affecting the continent.”

 

The genesis of the PAP can be legally traced back to 1991 with the adoption of the Treaty Establishing the African Economic Community, adopted on June 3, 1991, in Abuja (also known as the Abuja Treaty). This treaty defined the pillars and grounds for realizing economic development and integration in Africa and called for the creation of a continental parliament, among a set of other organs, as tools for the realization of African integration and economic development. This call was reemphasized in the Sirte Declaration of 1999, which called for the accelerated implementation of the provisions of the Abuja Treaty.

 

PAP celebrated its ten years of existence in March 2014, a year which coincided with the adoption, on June 27, 2014, in Malabo, Equatorial Guinea, of the Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament (PAP Malabo Protocol), which, once in force, will transform the PAP into a legislative body of the AU. It requires a minimum of 28 countries to ratify it before it comes into force.

 

Therefore, the commemoration of PAP Day serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 19 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.

 

The celebrations of PAP Day coincided with the closing ceremony of the sitting of the PAP Permanent Committees and other organs. The Sitting took place in Midrand, South Africa under the AU theme for 2023, “Accelerating the implementation of African Continental Free Trade Area (AfCFTA)” from 6 to 17 March 2023.

 

PAP President, H.E. Chief Fortune Charumbira, expressed appreciation to members for their commitment during the two-week engagement.

 

“We have come to the end of our program, and it is appropriate that we end on a high note with the PAP Day celebrations. 

“We will, upon your return to your respective countries, ensure that the work achieved over the past two weeks is transmitted to the national level for the benefit of our citizens,” concluded H.E. Chief Charumbira.

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PAP needs to priorities land issues-Prof Mathole

23rd March 2023

Prof Motshekga Mathole of the Kara Heritage Institute has advised the Pan-African Parliament (PAP) to prioritise the land issue in the continent if they are to remain relevant.

He said this while addressing the Plenary during the commemoration of PAP Day held at the PAP Chambers in Midrand, South Africa

The PAP Day was officially launched in 2021 to commemorate the inauguration of the first Parliament on 18 March 2004 in Addis Ababa, Ethiopia. Intended as a platform for people of all African states to be involved in discussions and decision-making on problems and challenges facing the continent.

In a speech titled “Whither Pan-Africanism, African Culture, and Heritage,” Prof Mathole stated that for PAP to remain relevant, it must address the continent’s key land dilemma, which he feels is the core cause of all problems plaguing the continent

“If this Parliament is to be taken seriously, ownership of land and natural resources must be prioritized at the national and continental levels. Africans are not poor; they are impoverished by imperialist nations that continue to hold African land and natural resources,” said Prof Mathole.

“When African leaders took power from colonialists, they had to cope with poverty, unemployment, and other issues, but they ignored land issues. That is why Africa as a whole is poor today. Because our land and minerals are still in the hands of colonizers, Africa must rely on Ukraine for food and Europe for medical.”

Prof Mathole believes that the organization of the masses is critical as cultural revolution is the only solution to Africa’s most problems.

“We need a cultural revolution for Africa, and that revolution can only occur if the masses and people are organized. First, we need a council of African monarchs since they are the keepers of African arts, culture, and heritage. We need an African traditional health practitioners council because there is no ailment on the planet that cannot be healed by Africans; the only problem is that Africans do not harvest and process their own herbs,” he said.

Meanwhile, PAP President, H.E. Hon Chief Fortune Charumbira expressed satisfaction with the commitment displayed throughout the two-week period and said the PAP Day celebrations were befitting curtains down to the august event.

“On this high note of our two-week engagement, it is appropriate that we close our program on a high note with PAP celebrations, and I would like to thank everyone for your commitment, and please continue to be committed,” said H.E Hon Chief Charumbira.

PAP’s purpose as set out in Article 17 of the African Union Constitutive Act, is “to ensure the full participation of African people in the development and economic integration of the continent”. As it stands, the mandate of the Parliament extends to consultation and playing an advisory and oversight role for all AU organs pending the ratification protocol.

Also known as the Malabo Protocol, the Protocol to the consultative act of the AU relating to the PAP was adopted at the Assembly of Heads of State and Government summit in June 2014 and is intended to extend the powers of the PAP into a fully-fledged legislative organ. It requires a minimum of 28 countries to ratify it before it comes into force.

The commemoration of the PAP Day, therefore, serves as a reminder to the decision-makers around the continent to fulfil their commitment to the PAP by ratifying its Protocol, 17 years after sanctioning its establishment. 14 AU member states have so far ratified the Malabo Protocol.

The PAP Day commemoration also aims to educate citizens about the PAP and ignite conversations about the future of the continental Parliament in line with its mandate.

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DPP drops Kably threat to kill case

22nd March 2023

The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.

In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.

Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.

The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.

According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”

Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.

Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.

In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe  cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.

A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.

“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.

The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”

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