Fighting for recognition in Botswana

In February 2012, a small group of people tried to register an independent organisation in Botswana. The objectives of the organisation are to promote the universality of human rights in Botswana and to encourage the provision of health services without discrimination. The organisation would seek to achieve these objectives through advocacy, education and research.

So far, so good.

April 25th, 2013

In February 2012, a small group of people tried to register an independent organisation in Botswana. The objectives of the organisation are to promote the universality of human rights in Botswana and to encourage the provision of health services without discrimination. The organisation would seek to achieve these objectives through advocacy, education and research.

So far, so good.

If it succeeds, the organisation will be called LEGABIBO – Lesbians, Gays and Bisexuals of Botswana. Working to strengthen the participation of lesbian, gay and bisexual people in public policy processes, they intend to also advocate for decriminalising same-sex sexual conduct. This proved to be unpalatable for the Director of Civil and National Registration, who refused to register the organisation. The Applicants appealed this decision to the Minister of Labour and Home Affairs, who confirmed the Director’s refusal in November 2012.

The refusal to register their organisation came as no surprise to the founding members of LEGABIBO. In their experience, government officials tend to scamper away from making an outright decision on a controversial topic and would prefer to pass the decision on to someone else – in this case, the High Court.

In March 2013, requesting a judicial review of the decision, arguing that the refusal to register the organisation violated their constitutional rights, including their rights to freedom of association, freedom of expression, and equal protection of the law. By taking this case to court, the Applicants sought to emphasise the importance of these rights in a democracy. Succeeding in this case will benefit not only the Applicants, but any minority group which seeks to uphold its right to freedom of association in Botswana.

Botswana is one of the world’s most peaceful and democratic countries and has been exemplary in the fight against HIV/AIDS. The Botswana judiciary is independent and has well-developed constitutional jurisprudence. As such, the Applicants believe that the country will recognise and benefit from an organisation such as LEGABIBO.

LEGABIBO has a vision to make life a little bit easier for LGB people living in Botswana. In particular, the Applicants want to focus on working with health services so that they are better equipped to deal with the health needs of the LGB community and are more respectful of the rights and dignity of users of the health care system. LEGABIBO seeks to reduce HIV transmission in Botswana and supports the Botswana HIV/AIDS National Strategic Framework 2010-2016 which states that “(t)he national response upholds individual and human rights by promoting the dignity, non-discrimination and welfare of all people, whether infected or affected by HIV and AIDS and ensuring equal access to health and social support services regardless of race, creed, religious or political affiliation, sexual orientation or socio-economic status.”

In Botswana, the formation of associations must be approved in terms of the Societies Act. An application for registration of an association can be refused, but only on very specific grounds. The Director and Minister did not provide reasons for their refusal to register LEGABIBO. There is no evidence or suggestion that LEGABIBO’s objectives are likely to be used for any unlawful purpose prejudicial to peace, welfare or good order in Botswana.

Even though same-sex sexual acts remain criminalised, there is no law in Botswana that prohibits anyone from being a lesbian, gay or bisexual person or which denies them the right to collectively organise. The denial of registration clearly does not serve any substantial government interest. It appears then that the refusal to register was based purely on moral disapproval of the objectives of LEGABIBO. The Applicants argue that such reasoning is misplaced in a democratic society which has as its founding principles the notion of tolerance, diversity and pluralism.

Freedom of association, assembly and expression are paramount values in a democratic society. These rights are protected in the Botswana Constitution as well as regional and international human rights instruments. The refusal to grant legal status to an organisation is a clear infringement of these rights. Rights are universal in application and can only be restricted in Botswana if this is reasonably required in the interests of defence, public safety, public order, public morality or public health. Any limitation of these rights must be reasonably justifiable in a democratic society.

The Applicants argue that, instead of refusing to register LEGABIBO, the State should be promoting their rights. The participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they are able to integrate with each other and pursue common objectives collectively. The State has an obligation to support the exercise of these rights, especially in the case of minority groups.

In this respect, it does not matter if the views of such associations are unacceptable or unpopular. Freedom of association and expression is always worthwhile, because it increases respect for other people’s ideas, citizen participation in the democratic system and social cohesion.

It has not been an easy decision for the Applicants to challenge the refusal to register their organisation in court. The route of litigation was decided upon as last resort when other avenues of engagement with the Department of Labour and Home Affairs were exhausted. To be involved in a court case as Applicants take tremendous courage and sacrifice. The Applicants are supported in this case by a prominent human rights lawyer, Unity Dow, who is acting for the Applicants, and the

 

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