The Botswanan LGBT rights organisation, The Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), have had their right to freedom of association upheld at the Court of Appeal in the case of The Attorney General of Botswana and Thuto Rammoge & 19 others, following their High Court victory in November 2014. This should ensure that the Botswanan government can no longer deny this group their legal registration status.
The Court of Appeal stated: “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 borrowed heavily from another recently successful case in Kenya, where the High Court in Nairobi ruled in favour of granting NGO registration to Eric Gitari’s organisation, The National Gay & Lesbian Human Rights Commission. In this case the court declared that:
“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. (…) 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.
LEGABIBO’s initial court victory was historic. The pronouncements made in the judgment unequivocally argued that constitutional rights should and must be universally applied to everyone, and that they cannot be denied to any person on the basis of their identity. In the judgment, the presiding Judge Rannowane emphasised the importance of democratic freedoms, stating:
“In a democratic society such as ours, freedom of expression, assembly and association are important values duly protected by our constitution.”
The victory was also remarkable given the generally hostile climate towards LGBT rights in Africa. Of Africa’s 53 states, 35 continue to criminalise homosexuality; including Botswana, where it is still punishable by up to seven year’s imprisonment. Across the continent, there have been concerning moves by governments to try and clamp down on civil society, in particular with regards to LGBT rights organisations. LEGABIBO is a stunning example of an organisation battling this tide.
“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.”