Dingake talks about gay rights in tribute to Kirby
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Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.
Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.
In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).
Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. In a stroke of a pen, he ended the long and tortuous road to equality of gay people.
I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered, Justice Dingake said.
He said in truth Botswanas Constitution never denied the right to equality for gay men. It was society and the judges who did some arguing that the time is not right to extend equality rights to gay persons forgetting the self-evident truth that we are all born equal and that rights are not negotiable not even with Judges.
It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.
There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism, Justice Dingake wrote.
He added that in Kanani the Court of Appeal held back our march to freedom for more than a decade and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution.
The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.
They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by public opinion, which was not right, and they chose not read: sexual orientation, into section 15 of the constitution, which they could have done.
Botswanas Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity and with a sense of the future and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution and to effect the promise of the Constitution by among other things rejecting the tyranny of the majority.
Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang. A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.
When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: the constitution is what the Judges say it is, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.
Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book Key Aspects of the Constitutional Law of Botswana. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.
In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread, the Judge wrote.
He said serious debate however cropped up sometime around August 1995, after president Robert Mugabes much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.
Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations, he said.
He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswanas criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.
Within the framework of Botswanas Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.
Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.
He added that it needs to be said that it is however fruitless to bury our heads in the sand and hope the issue will disappear for good. He concluded: In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority.
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Local tennis team upbeat ahead of Billie Jean King cup
With almost two weeks until the 2023 Billie Jean King Cup, which will be staged in Kenya from June 12-17, 2023, the Botswana Tennis Association (BTA) ladies’ team coach, Ernest Seleke, is optimistic about reaching greater heights.
Billie Jean King Cup, or the BJK Cup, is a premier international team competition in women’s tennis, launched as the Federation Cup to celebrate the 50th anniversary of the International Tennis Federation (ITF). The BJK Cup is the world’s largest annual women’s international team sports competition in terms of the number of nations that compete.
The finals will feature 12 teams (Botswana, Burundi, Ghana, Kenya, Seychelles, Morocco, Namibia, Nigeria, Tunisia, Mauritius, Zimbabwe, and the Democratic Republic of Congo) competing in the four round-robin groups of three. The four group winners will qualify for the semifinals, and the 2023 Billie Jean King Cup will be crowned after the completion of the knockout phase.
Closer to home, the BW Tennis team is comprised of Thato Madikwe, Leungo Monnayoo, Chelsea Chakanyuka, and Kelebogile Monnayoo. However, according to Seleke, they have not assembled the team yet as some of the players are still engaged.
“At the moment, we are depending on the players and their respective coaches in terms of training. However, I will meet up with Botswana-based players in the coming week, while the United States of America (USA) based player Madikwe will probably meet us in Kenya. Furthermore, Ekua Youri and Naledi Raguin, who are based in Spain and France respectively, will not be joining us as they will be writing their examinations,” said Seleke.
Seleke further highlighted the significance of this competition and how competitive it is. “It is a massive platform for our players to showcase their talent in tennis, and it is very competitive as countries target to get promoted to the world categories where they get to face big nations such as Spain, France, USA, and Italy. Though we are going to this tournament as underdogs because it is our second time participating, I’m confident that the girls will put in a good showing and emerge with results despite the odds,” highlighted Seleke.
Quizzed about their debut performance at the BJK Cup, he said, “I think our performance was fair considering the fact that we were newbies. We came third in our group after losing to North Macedonia and South Africa. We went on to beat Uganda, then Kenya in the playoffs. Unfortunately, we couldn’t play Burundi due to heavy rainfall and settled for the position 9/10,” he said.
For her part, team representative Leungo Monnayoo said they are working hard as they aim to do well at the tourney. “The preparations for the tourney have long begun because we practice each and every day. We want to do well, hence we need to be motivated. Furthermore, I believe in my team as we have set ourselves a big target of coming home with the trophy,” she said.
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Pep Stores donates sanitary towels to Popagano JSS
The Guidance and Counseling unit at Popagano Junior Secondary School received a donation of 790 sanitary towels from Pep stores on Thursday.
When presenting the donation, Mareledi Thebeng, the Dinokaneng Area Manager, highlighted their belief in giving back to the community, as their existence depends on the communities they serve. Thebeng pointed out that research indicates one in four girls miss school every day due to the lack of basic necessities like sanitary towels. Therefore, as a company, they strive to assist in alleviating this situation. She expressed hope that this donation would help ensure uninterrupted learning for girls.
Upon receiving the donation on behalf of the students, Charity Sambire, the President of the Student Representative Council, expressed her gratitude. Sambire specifically thanked Pep Store for their generous gift, speaking on behalf of the students, especially the girl child.
She conveyed their sincere appreciation for Pep Store’s compassion and quoted the adage, “Blessed is the hand that gives.” Sambire expressed the students’ hope for Pep Stores’ prosperity, enabling them to continue supporting the students. As a gesture of gratitude, the students pledged to excel academically.
During her speech, Motlalepula Madome, the Senior Teacher in Guidance and Counseling, highlighted that many students at the school come from disadvantaged backgrounds where parents struggle to provide basic necessities. Consequently, some students miss school when they experience menstruation due to this lack.
Madome emphasized the significance of the donation in preventing the girl child from missing lessons and its potential to improve the school’s overall results. She expressed the school’s gratitude and expressed a desire for continued support from Pep Stores.
Popagano Junior Secondary School, situated in the Okavango District, holds the second position academically in the North West region. Despite its location, the school has been dedicated to achieving excellence since 2017
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Botswana misses out critical PAP committee meeting
The Pan African Parliament (PAP) committee on gender, family, youth and people with disability in its sitting considered, adopted and recommended to the plenary session the preliminary report on the framework for the model law on gender equality.
According to the last week’s media release from PAP which is sitting with its various committees until June 2nd, the committee is following up the PAP initiative to draw up a model law on gender equality to enable national governments to harmonize, modernize and standardize their legislations to address local needs is set to be discussed in Plenary.
However, what is concerning is the fact that Botswana which is a member state missed the deliberations. Kgosi Mosadi Seboko who sat in the committee representing Botswana has since been ejected by parliament and this is a huge blow for a nation that is still battling equity and gender balance.
“Although PAP has no legislative powers it makes model laws for member states to adopt. PAP also develops protocols to be ratified by countries. The input of countries at Committee state is extremely critical. It now means the voice of Botswana is missing the discussions leading up to development of protocols or model laws,” said one of Botswana’s representative at PAP Dr. Kesitegile Gobotswang who is attending the current session.
While Botswana is missing, the committee meeting took place on the sidelines of the Sixth PAP second ordinary Session being held under the African Union Theme of the Year for 2023, “The Year of AfCFTA: Accelerating the Implementation of the African Continental Free Trade Area” in Midrand, South Africa and will run up to 2 June 2023. Chairperson of the Committee, Hon Mariam Dao-Gabala expressed satisfaction with preliminary processes undertaken so far towards the formulation of the Model Law,” a release from the PAP website reads.
“The law should be suitable to all countries whatever the predominant culture or religion is. The aim is to give an opportunity to women to participate in the economic, political and social development of the continent. Women are not well positioned and face a lot of obstacles. We are introducing the idea of equity in the Law because we cannot talk about equality without equity,” said Hon Mariam Dao-Gabala in the press statement.
The release has stated that among issues to be covered by the Model Law is the migratory movements of women. The Committee proffered that this has to be addressed at the continental level to ensure that migrant women enjoy all their rights and live with dignity in their destination country. The members of the Gender Committee undertook consultations to consolidate the contributions of the various stakeholders that will be the logical framework format for the Model Law.