The Lesbians, Gays, Bisexuals Botswana (LEGABIBO)’s and government have locked horns once against over the criminalisation of homosexuality, with the Gaborone High Court yesterday postponing arguments on the matter to an unconfirmed date.
Arguments filed in the case by the State indicate that the Attorney General’s position in the case is that LEGABIBO and its lawyers have brought their case to the wrong forum.
The Attorney General also says the sections of the Penal Code complained about do not at all criminalise same sex sexual relationships but rather a particular sexual act whether it is committed by a man or woman.
According to the AG, sections 164 (a) (c) and 165 of the Penal Code target a specific sexual act regardless of sexual orientation and are thus non-discriminatory.
“The impugned provisions are gender neutral and do not apply to any particular sexual orientation or preference, being homosexuals or heterosexual,” reads the State’s papers. LEGABIBO, meanwhile, says the sections in question criminalise homosexuality and have practical effects on the lives of the LGBT persons.
Lawyers representing the lobby group said the constitution demands that the courts not only not at the letter of legal provisions, but also the substantive effect on the everyday lives of citizens.
a specific sexual act which, at its core hits one of the ways in which gay or homosexual men give sexual expression to their sexual orientation. It limits their choice to give sexual expression freely towards consenting partners whom they care about and love,” read the papers.
LEGABIBO’s lawyers said the Penal Code sections have even caused members of the gay community to face difficulties in accessing health care services, especially in cases involving HIV and TB.
“Government’s recent legal and environment assessment for HIV and TB confirmed that laws criminalising consensual same sex relationships pose a legal barrier to access to services and perpetuate stigma and discrimination,” LEGABIBO’s lawyers said.
The lawyers rejected the argument that they should approach Parliament for redress, saying the suggestion was “appalling”. LEGABIBO said Parliament’s function was to enact laws within the confines of the constitution for the good governance of the people.
“In this case parliament’s legislative function does not preclude the courts scrutiny of laws. Laws are always subject to the constitution.”
In 2016, LEGABIBO won a landmark victory for gay rights after the courts forced government to register the lobby group. Government has refused to recognise the organisation, saying its mandate was to pursue activities viewed as illegal under the law.