Botswana’s highest court has confirmed that it is illegal for the government to refuse to register LGBTI rights organizations in an effort to thwart their ability to campaign for law reform around homosexuality.
Botswana is one of the few countries in the world where sex between women is technically outlawed along with sex between men.
‘Carnal knowledge against the order of nature’ has been illegal in Botswana since 1885 under laws inherited from the British and anyone convicted of that offense could potentially be jailed for up to seven years.
However the law has rarely been enforced over the last decade and recent polling found that almost half the population of Botswana would not mind having a gay or lesbian person as their neighbor.
As a result, groups like Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) have been open in campaigning for law reform but the government of President Ian Khama had tried to thwart the group’s work by refusing it the status of a registered association.
A lower court found that refusal to be unlawful in 2014 but the government appealed that verdict and the Court of Appeals has now upheld the original verdict.
President of the Court of Appeals, Justice Ian Kirby ruled that, ‘it is clear that the government’s decision interferes in the most fundamental way with the respondents’ right to form an association to protect and promote their interest.’
‘The decision of the Minister (and of the Director/Registrar) refusing the registration of LEGABIBO as a society is set aside. The Registrar of Societies is to take such steps as may be necessary to register LEGABIBO as a society.’
Justice Kirby also directed the government to pay the legal costs of holding the appeal.
Supporters hugged and cheered inside the court room after the verdict was read out.
‘We are very very excited by the Court of Appeal finally ruling in our favour, that LEGABIBO has the right to register as an association with the framework of the Botswana Constitution,’ an activist with the group told The Botswana Gazette.
‘We are so excited, particularly by the reasons advanced by the Court of Appeal that the Constitution of Botswana does recognize homosexuals – that the Constitution does not speak exclusively about heterosexuals or homosexuals but all people regardless of sexual orientation.’