& THABO BAGWASI
The Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) will soon drag government to court demanding legalisation of same sex marriages and child adoption as part of their ‘strategic litigation process, The Patriot on Sunday has established.
Chief Executive Officer (CEO) of LEGABIBO, Thato Moruti made the revelation this week in a highly guarded conversation. He said LEGABIBO did not raise the issue of gay marriages before the Presidential Commission of Enquiry into the Review of the Constitution hearings, due to lack of confidence in the efficacy of the Commission as an instrument to adequately address the demands of the queer community, the LGBTQI+.
Instead, Moruti said the issue of gay marriages, child adoptions and gender markers among others will be prosecuted in the courts law through the organization’s ‘strategic litigation process.’ “Even though we did not make an explicit submission to the commission, we insist that marriage is a human right issue, and like any other relationship, many lesbians, gay, transgender and bisexual people want to form stable, long lasting relationships and many of them do. Marriage is one of those that is seen by many as the gold standard for celebrating the joy of love and commitment. It is hence that we made it clear in our strategy to develop a strategic litigation process that allows us to identify strategic laws that we need to go after in response to the needs of the LGBTQI community,” Moruti revealed, adding that the litigation process will ensure that LEGABIBO does not adopt a blanket approach or what he termed a ‘big bang theory’ and a ‘one size fits all’ strategy.
Following an historic victory against government by a homosexual young man, Letsweletse Motshidiemang over same sex relationships, the LGBTQI+ community is planning to take the battle a notch higher, pushing for legalisation of gay marriages, adoption of kids by gay couples and a spectrum of other issues that will broaden enjoyment of their rights in society.
Delivering the landmark judgment decriminalising same sex relationships back in 2019, Justice Michael Leburu questioned the “regulatory joy and solace is derived by the law, when it criminalises such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct?”
“Is this not a question of over-regulation of human conduct and expression, which has the effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights. Personal autonomy on matters of sexual preference and choice must therefore be respected. Any criminalisation of love or finding fulfillment in love dilutes compassion and tolerance,” Justice Leburu observed.
Obakeng Chabanga, an attorney at Banana Club -a safe space platform that informs, inspires and engages with various key publics to lead dynamic conversations among the queer community, said they hope for a country that safeguards the rights of all its people.
“Having the right to marry our significant others would go an extra mile as this would also provide the ancillary marriage rights to queer people and improved legal protection. We’re exploring further avenues to move for legalization of same sex marriages and hope to achieve the same by working with Iranti and SALC which are based in SA where same sex marriages have been legalized,” said Chabanga.
Tshiamo Rantao -the lawyer appointed by LEGABIBO to bolster the Motshidiemang litigation as a friend of the court, confirmed that indeed gay marriages are currently outlawed in Botswana. “I am sure it‘s something that they (queer community) are considering, but I don’t have any instructions on it at present,” said Rantao, on the subject of gay marriages. LEGABIBO’s participation in the case was sponsored by Southern Africa Litigation Centre (SALC). Motshidiemang, who was represented in the court case by attorney Precious Ramaja, declined to discuss the subject because he is now a civil servant, when invited by The Patriot on Sunday.
Chabanga said their main focus this year has been advancing the socio-economic status of the LGBTQI+ community through art-led initiatives, including media perception/ public education. “We, alongside other collectives, have recently completed a draft report for the next cycle of the Universal Periodic Review (UPR). The Universal Periodic Review highlights actions that need to be taken by countries in relation to fulfilling their agreed human rights obligations. These actions are presented as recommendations for states/ countries to take action on,” said Chabanga.
“The shadow report will highlight the Human Rights violations that still remain post the Decriminalization Case which did not repeal Section 167 of the Penal Code, The prevalence of GBV and VAW and Sexual Reproductive Health Rights. The non repealed Penal Code section could possibly discriminate against lesbian and queer woman. As such we are diligently working with our sister collectives to advocate for lesbian and queer women to receive equal protection of the law. We strive to maintain safe spaces for all queer folk,” he added.
Further, Moruti said child adoption will form part of the litigation process whose approach and contents will be revealed ‘very soon.’ He said LEGABIBO has made a clear submission to the Dibotelo Commission on the importance of ensuring that the constitution is clear with regards to child adoption.
Additionally, he said their approach will be across different needs of the Lesbians,Gay,BisexualTransgender,Queer and Intersex(LGBTQI) community including addressing the ‘gender marker’ which he described as important at the moment. “We made a clear submission to the commission that there is importance in ensuring that the constitution is quite clear as far as adoption is concerned and adoption forms part of our strategic litigation process and we will be coming to you very soon to engage you on how we plan to proceed with our process,” he said.
Moruti also said at the core of LEGABIBO strategy is a push to create a favorable legal environment after decriminalization of same sex liaisons. “In other words, beyond decriminalization, we are looking at the reformation of laws and systems. Policies in the private sector should clearly interpret the needs of members of the LGBTQI community and not only stipulated on paper,” he said, noting that even though they are over the hurdle of decriminalization there is still a problem with the transgender community who still encounter gender marker hurdles especially in the financial institutions.
In the event LEGABIBO has its way with these laws, it intends to be inclusive towards the LGBTQI community as well as the general populace, Moruti said. LEGABIBO also intends to extend its tentacles and influence by opening more offices in different districts to increase their reach and impact. “We are pushing to ensure that there is increased coverage of the scope of our work. Our community impact and reach should be heightened,” he said.
BONELA Director, Cindy Kelemi