Gov’t appeals homosexuals court victory
By Tefo Pheage
Minister of Labour & Home Affairs: Edwin Batshu
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.
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