After being listed as the international highlight of 2014 in a report by the United Nations Special Rappoteur recapping “monumental” events for 2014, LEGABIBO-the country’s gay and lesbian group’s landmark victory has forced the Government to seek alternative ways to plead with the courts to reverse the unwanted group’s victory.
Government filed the appeal during the festive break, protesting the November high court ruling that the government had acted unconstitutionally in blocking LEGABIBO registration.The Botswana Penal Code describes homosexual acts as offences against morality.
Justice Terrence Rannowane declared that the 20 applicants were entitled to assemble and associate under the name and style of LEGABIBO, further adding that the organisation was entitled to be registered as a society.
"In a democratic society such as ours, freedom of association, assembly and expression are important values duly protected by our Constitution. The enjoyment of such rights can only be limited where such limitation is reasonably justified in a democracy. It is also not a crime to be a homosexual," said Justice Rannowane.
"Refusal to register LEGABIBO was not reasonably justifiable under the Constitution. It violated the applicants' rights to freedom of expression, freedom of association and freedom of assembly as enshrined under Sections 3, 12 and 13 of the Constitution of Botswana," said the judge.
In their grounds of appeal, the Government says that the courts erred in fact by finding that they (Government) conceded to LEGABIBO being entitled to protection in several sections of the Constitution of Botswana.
“Whether or not LEGABIBO exists as a class of persons who are so entitled was an entirely legal question to be determined by the courts, and government’s affidavit only sought to justify an infringement of any of LEGABIBO’s rights’ provided they were found to be entitled to them,” reads the application.
The AG argues that the court erred in law and misdirected itself by recognising that the application ‘bore all the hallmarks of a review application’ but proceeded to determine it as an application brought under section 18 of the constitution. Applications under the same section, they argue, are brought under order 70 of the high court rules, and the arguments which are allowed under the two types of application are vastly different.
“We understood the matter to be a common law review application and were prejudiced in argument as a result of the court adopting this unprecedented and conflated procedure,” argues AG.
The government further finds fault with the courts saying they made a mistake in fact and in law by finding that LEGABIBO had made out a case for common law review application, further adding that no grounds necessary for establishing a common law review application were alleged in the founding affidavit. “The court erred by allowing LEGABIBO to argue grounds of review which it had not pleaded in its founding papers,” they say in their court papers.
The government further states that the court erred when applying the test of Wednesbury unreasonableness on the judgement. The scope of enquiry should have been whether a reasonable decision maker similarly positioned, would come to a similar conclusion.
“The court instead considered whether the government decision was reasonable/correct to the court, which constitutes an undue interference of the Minister’s discretion to make the decision in question. The court turned itself into the Minister of Labour and Home Affairs, which is impermissible,” charges the AG.
The court, the AG says, failed to consider that a reasonable decision maker similarly positioned, may conclude that the registration and consequent activities of LEGABIBO may lead to popularization of acts criminalised at section 164 and 167 of the penal code.
“The court failed to consider that a reasonable decision maker may find the registration of the society to be repugnant to the provisions of these written laws,” argues AG who continued that the court erred concluding that the objects of LEGABIBO would not run contrary to ‘good order’ as described in the Society Act.
The government further says the court erred in finding that ‘homosexuals exist as a class of persons entitled to protection in the constitution, adding that they (Government) were not entirely incorrect when they said persons of homosexual nature are not recognised in the Constitution as the court in the case of KANANE V.THE STATE had rule.
The Government further charges that ‘the court erred in finding that homosexual persons are included within the definition of the word ‘persons in section 3,7, and 13 of the constitution’.
Then court is accused of having sidelined other pronouncement of the court of appeal, particularly the KANANE V.THE STATE 2003.Ther court they say should have considered itself bound to this decision of the Court of Appeal. The group had already re-applied for registration after winning a case which the government is now appealing.
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.
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.
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.