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LeGaBiBO registration judgement: A lawyer’s perspective


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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Khan: Boko, Masisi are fake politicians

18th January 2021
Masisi & Boko

While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.

Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.

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Ookeditse rejects lobby for BPF top post

18th January 2021

Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.

Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.

Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”

“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.

He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.

He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.

According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.

There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.

Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.

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BDP cancels MPs retreat

18th January 2021
President Masisi

Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.

“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication.
The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.

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