Many thanks to law student Michelle Hayman, Research Assistant in the International Reproductive and Sexual Health Law Program at the University of Toronto, for summarizing this decision for subscribers of our REPROHEALTHLAW blog.
Landmark Freedom of Expression Victory for LGBT Group in Botswana
Thuto Rammoge and 19 others v Attorney General  MAHGB-000175-13 (High Court of Botswana) November 14, 2014 Decision online.
The High Court of Botswana overturned the Minister of Labour and Home Affairs’ decision to refuse to register LEGABIBO (Lesbians, Gays and Bisexuals of Botswana) as a society. The Minister had denied their application on the grounds that “Botswana’s constitution does not recognize homosexuals” and that their application would violate s. 7(2)(a) of the Societies Act which states that “the Registrar shall refuse to register […] a local society where […] any of the objects of the Society is or is likely to be used for any unlawful purpose” (4).
Rannowane J overturned this decision as unreasonable under a common law judicial review and as a violation of the petitioner’s constitutional rights to freedom of expression, assembly and association. He differentiated between engaging in homosexual activity, which is outlawed in Botswana, and engaging in lawful political advocacy and lobbying. He therefore found that the decision to refuse to register the society based on s. 7(2)(a) was “clearly wrong” (12).
Importantly, Rannowane J emphasized that it was not illegal to be attracted to individuals of the same sex. In finding a constitutional violation of sections 3, 12 and 13 of Botswana’s constitution, he stated that “denying people whose sexual orientation is not a crime in Botswana the right to register a society for the purposes of lawfully carrying out advocacy for inter alia, decriminalization of homosexuality is a clear violation of their constitutional right to freedom of expression, assembly and association” (17). The Court ordered that LEGABIBO be entitled to register as a society.
NGOs and advocacy groups are recognizing this case as an important victory for freedom of expression and LGBT rights in Southern Africa.
LEGABIBO’s comments on the triumph are online here.
Entire decision is online here.
Legal oppression of LGBT people in Botswana is outlined here.
Human Rights Watch comment is online here.
Legal Grounds: Sexual and Reproductive Rights in African Commonwealth Courts – Volumes 1 and 2 [2000-2008] are online here.