(Nairobi) – The Botswana High Court, in a groundbreaking decision, ruled on November 14, 2014, that members of a lesbian, gay, bisexual, and transgender (LGBT) rights group could formally register their organization, Human Rights Watch said today.
The decision was issued in response to a petition filed by Lesbian, Gays and Bisexuals of Botswana (LEGABIBO) to register under the Botswana Societies Act. The Botswana registrar of societies rejected the group’s request to register in March 2012. Registration is required to carry out the group’s organizational functions and for equal participation in the development of national programs.
“The court’s ruling is a significant victory for the LGBT community, not only in Botswana but elsewhere in Africa where LGBT groups have faced similar obstacles to registration,” said Monica Tabengwa, LGBT researcher at Human Rights Watch. “The Botswana High Court decision is a milestone in the fight for LGBT people’s right to equality under the law.”
Same-sex conduct is outlawed in 38 African countries. One of the insidious effects of these laws is that LGBT organizations are denied registration in these countries on the grounds that they will be promoting an illegal activity. This has the effect of violating LGBT people’s rights to freedom of association, assembly, and expression, Human Rights Watch said. LGBT groups in several African countries, including Kenya and Uganda, have filed legal challenges after they were denied registration.
Members of LEGABIBO submitted an application for registration on February 16, 2012. The application was rejected on March 12, 2012, on grounds that the Botswana Constitution “does not recognize homosexuals,” and that the application would violate section 7(2)(a) of the Botswana Societies Act. That section allows the government to deny an application for registration if “it appears … that any of the objects of the society is, or is likely to be used for any unlawful purpose prejudicial to or incompatible with peace, welfare or good order in Botswana.”
In their application to the High Court, the applicants said that the registrar’s refusal to register the organization was an unjustified limitation on their constitutional rights to non-discrimination, freedom of association, assembly, and expression. The Botswana Constitution makes no reference to “homosexuals” or “homosexual activity,” and while the penal code includes a prohibition on same-sex sexual conduct, there is no legal prohibition on being a lesbian, gay, or bisexual person, nor from associating as such.
In upholding the application, Justice Terence Rannowane of the Botswana High Court in his ruling said that freedoms of association, assembly, and expression are important values of society, and that the “enjoyment of such rights can only be limited where such limitation is reasonably justifiable in a democracy.” The decision continued: “The objects of LEGABIBO as reflected in the societies’ constitution are all ex facie lawful. They include carrying out political lobbying for equal rights and decriminalization of same sex relationships.”
“Freedoms of association, assembly, and expression reflect paramount values in a democratic society,” Tabengwa said. “By rejecting the refusal to grant legal status to an organization on the basis of the members’ sexual orientation, the court was protecting those rights for all in Botswana.”