The Law society of Botswana has abandoned its intention to challenge the appointment of Dr Zein Kebonang as the Acting Judge of the High Court.
The Law Society concede that the appointment was constitutional, however it is convinced that it stands the chance to successfully persuade the court that President Lt Gen Ian Khama was wrong not to appoint Omphemetse Motumise to the same bench.
In its application filed before the Gaborone High Court early this week, the LSB expressed its intention to request the court to review and set aside the President’s decision not to appoint Motumise as the High court Judge in April this year.
In April, President Khama turned down Motumise’s name which was recommended to him by the JSC for appointment to the bench and instead requested for a different name. The JSC then recommended Dr Kebonang for appointment and now the LSB which sits in the commission maintains that the President was wrong.
According to the LSB the President is bound to implement the advice of the JSC in terms of the constitution. The society has therefore filed a legal case against President Khama and the JSC for what they believe is violation of the laid down rules.
“The applicants submit that the JSC has the sole responsibility for deciding who should be appointed as judges to the High courts. The President does not retain any form of discretion to refuse or reject the advice of the JSC on which candidate should be appointed,” LSB explained it its filing notice.
The current application before court seeks to address among others, whether the President has discretion to refuse candidates who were or are nominated by the judicial service for appointment as judges to the High Court as well as to what extent the proceedings and decisions of the JSC are confidential.
The application further wants the court to pronounce as to what extent the LSB representative on the JSC is entitled to consult with and report to the LSB council on decisions and proceedings in the JSC.
The LSB through their attorney Tshiamo Rantao of Rantao Kewagamang Attorneys wants the court to review and set aside the President’s decision not to appoint Motumise as the Judge of the High court. The society also wants the court to declare that the judicial service commission’s interviews of candidates for appointment as judges must as a rule, be open to the public.
The Society would further request the court to declare that the JSC must make the outcome of its deliberations on the appointment of judges public.
“Candidates apply to a seat of profound public power and prestige to which an appropriately high standard of public scrutiny and accountability is attached. For this reason, the applicants submit that it is in the public interest that interviews take place in public and that this will act as a democratic safeguard against the risk of unsuitable individuals being vested with judicial authority,”
The LSB further contends that the principle underlying the application is that the independence of the country’s judiciary is foundational to its constitutional democracy and is premised on the competence, credibility, integrity and impartiality of the judiciary.
They further submitted that the JSC has been vested with a substantial public and constitutional responsibility to ensure such judicial independence and it is incumbent on them to exercise this power in an open and transparent manner and in conformity with general principles of good governance.
Attorneys, Tshiamo Rantao, Kelebogile Kewagamang, Nyaradzo Mupfuti, Tefo Gaongalelwe and Kuda Tshiamo have been given the power to represent the LSB and Motumise and the matter while President Khama, JSC and the Attorney General have been cited as respondents and expected to be represented by government attorneys.
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.