The Attorney General, Dr Athalia Molokomme has released a statement in which she dismisses reports that the application before the High Court challenging the Constitutionality of the Parliamentary Standing Orders was sponsored by President Lt Gen Ian Khama.
According to Molokomme, “the fact of the matter is that the ex parte application has been lodged by the Attorney General, who has the constitutional mandate to do so. It has been duly served upon the three parties who are represented in Parliament: the Botswana Democratic Party, the Botswana Congress Party and the Umbrella for Democratic Change, who are cited as Respondents in view of their interest in the matter.”
The AG is concerned that the perception which has been created by some reports that the President, in his capacity as such, or, alternatively, as the head of his political party, the Botswana Democratic Party, approached the Court through my office is not correct.
“I considered it appropriate, for the avoidance of doubt, and in light of the events and media commentary following the recently held general elections, to communicate with the general public regarding the constitutional application before the High Court with respect to the election of the Speaker, Deputy Speaker and the endorsement of the Vice President.”
Molokomme explained that following the general elections that were conducted on 24 October 2014, and in my capacity as the Attorney General, on the 29th of October I instituted legal proceedings in the High Court on an urgent basis to determine the constitutionality of certain Standing Orders of the National Assembly relating to the election of the Speaker, Deputy Speaker and the endorsement of the Vice President.
“The specific remedy being sought in the legal proceedings is for an order declaring Standing Orders 4.3, 4.4, 4.5, 4.6, 4.11, 4.14 and 6.1 to be unconstitutional and ultra vires section 89(5) as read with sections 39, 59, and 74 of the Constitution.
As will be expected in such a matter of national interest, the media and the public in general have shown significant interest in this case, specifically, the nature of the legal issues it raises, and its consequences for the operations of the government and Parliament in particular.”
The constitutional milestones following the general election have unfolded as follows:
• Following his swearing in on 28 October 2014, His Excellency the issued a Proclamation under section 90(1) of the Constitution declaring that a session of Parliament be held on 31st October 2014;
• Parliament was indeed convened on 31st October 2014, and all 57 Elected MPs and 4 Specially Elected MPs were sworn in by the Clerk of the National Assembly in accordance with section 71 of the Constitution, as read with section 76(2) of the Constitution and Standing Order 4.2 of the National Assembly. However, the Clerk of the National Assembly did not proceed to elect a Speaker, Deputy Speaker and endorse the Vice President;
• This was on the basis of my advice that in light of the pending court proceedings, no Parliamentary transaction touching upon the standing orders in question should be undertaken, as that would violate the sub judice rule.
• Following the swearing in of the MPs, His Excellency the President appointed the Cabinet under the provisions of Chapter IV, Part II of the Constitution, whose members were announced on 30 October 2014. The Executive Branch of government is therefore fully operational.
• According to the Constitution, ‘no business shall be transacted in the National Assembly (other than an election to the office of Speaker) at any time when the office of Speaker is vacant’. This means that pending the final decision of the Courts, Parliament shall not sit to conduct its business.
• However, an orientation seminar will be held as planned for members of the 11th Parliament on 3rd to 7th November 2014. It is against the foregoing that I appeal to the media and other commentators to exercise caution when reporting on this weighty and complex constitutional matter. Regrettably, some reports have been at best inaccurate, and at worst misleading. Without delving the issues before the Courts, which shall in due course be pronounced upon by the Courts, I must emphasise the following:
“Finally, I wish to reiterate that the Constitution is the supreme law of Botswana, and the Attorney General, like all elected officials and public officers, has sworn allegiance to uphold it. This is the basis upon which the application to the High Court is predicated,” says Dr. Athalia Molokomme.
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.