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In an historic ruling, The Lesbians, Gays & Bisexuals of Botswana (LEGABIBO) has won an appeal to recognise its members’ right to freedom of association. The right for the group to meet and organise – which, if refused, would prevent them campaigning for LGBT rights in the country – was upheld at the Botswanan Court of Appeal, following a High Court victory in November 2014.
LEGABIBO’s initial High Court victory had meant that constitutional rights should and must be universally applied to everyone, regardless of identity or whether such an identity was popular or not. However, this decision was appealed by the government, who wanted to prevent the group from meeting in what is seen as a clamp-down on LGBT rights across the continent.
Although countries like Uganda and Nigeria are tightening laws against LGBT people, Judge Rannowane, who presided over the decision, emphasised the importance of democratic freedoms in the judgement.
Rannowane said, ‘In a democratic society such as ours, freedom of expression, assembly and association are important values duly protected by our constitution.’
Botswana is among the 35 African states that continue to criminalise homosexuality. Homosexuality is still punishable by up to seven year’s imprisonment in the country.
‘This judgment is one of the many occurrences in Botswana where democracy has come to play, the courts are protecting minority rights and giving a voice to the LGBTI community,’ said Anna Mmolai-Chalmers, LEGABIBO Coordinator at BONELA.
Jonathan Cooper, Chief Executive of Human Dignity Trust, said, ‘Freedom of association is one of the most pivotal and fundamental democratic freedoms as it allows us to project our voices and advocate for our rights. If LGBT rights groups in Africa are allowed to associate, they will then be able to highlight the persecution and injustices that are committed against them in states which criminalise homosexuality. It is vital that these groups are given a legitimate platform, a voice, from which they can denounce all violations of their human rights and all the harms which flow from this.’
The Court of Appeal ruling said, ‘It cannot be denied that in Botswana, all persons, whatever their sexual orientation, enjoy an equal right to form associations, with lawful objectives for the protection and advancements of their interests. The refusal of the Minister to allow the registration of LEGAbibo was unconstitutional.’
The judgment in the appeal was informed by a similar decision recently in Kenya, where the High Court in Nairobi ruled in favour of granting NGO registration to The Kenyan Gay & Lesbian Human Rights Commission.
In the Kenyan case, the court said, ‘The Constitution and the right to associate are not selective. The right to associate is a right that is guaranteed to, and applies to, everyone.’
The Kenyan court went on to add, ‘It does not matter if the views held by certain groups or associated relations are unpopular, or unacceptable to certain persons…’
This case is also in the process of being appealed.