Africa-Press – Botswana. While the presentation of Botswana to the UN seems to be angled for temporising in order for the issues to be debated in Parliament, a human rights lawyer who successfully acted for LEGABIBO in court is in no doubt that Parliament has no constitutional authority to debate laws already nullified by the judiciary.
Parliament and the Cabinet face potential contempt of court if they proceed with plans to debate a repeal of decriminalised anti-gay laws.
This is according to prominent human rights lawyer and legal representative for the human rights organisation LEGABIBO (Lesbians, Gays & Bisexuals of Botswana), Tshiamo Rantao.
He was reacting to submissions by the government before the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) that the Penal Code (Amendment) Bill of 2024 was postponed to allow for “intensive interrogation of the constitutional review of the issues raised with his ministry regarding the Bill”.
An assault on the rule of law
Rantao warned that any attempt to revisit “the so-called sodomy laws already struck down by the judiciary would constitute an assault on the rule of law”.
He was also responding to reports that some lawmakers may seek to debate the removal of Section 164 (a) and (c) of the Penal Code, which previously criminalised same-sex sexual relations.
The laws were unanimously overturned by a full bench of the Court of Appeal on 29 November 2021 following an earlier ruling by the High Court.
“A total of eight judges, three at the High Court and five at the Court of Appeal, agreed without any dissent that these laws were unconstitutional,” Rantao noted. “These judgments decriminalised same-sex sexual conduct in Botswana. There is no longer any criminalization, to begin with.”
Parl has no authority
The human rights lawyer who represented LEGABIBO in both the High Court and the Court of Appeal proceedings stressed that Parliament has no constitutional authority to debate laws already nullified by the judiciary.
“In my respectful view, the Parliament of Botswana has no constitutional mandate to debate whether or not to delete laws which have been struck down, that is, deleted by the courts,” he said. “What if Parliament votes against deleting them? The simple answer is that that would be contemptuous of our courts.”
The debate
The debate comes amid a growing pushback from conservative political and religious sections of society that have sought to resist the 2021 rulings. However, Rantao noted that Botswana has historically respected court decisions even when they have been unpopular.
“In Botswana, all of us, citizens, churches, etc., have always respected judgments of our courts, whether or not we are happy with them,” he added.
In its submissions before the UN Committee, the government stated: “While civic groups have raised considerable concerns with the broader constitutional review progress, the proposed protection for intersex persons suggests a positive momentum towards better LGBTQI+ protections in Botswana.”
The government said the Penal Code (Amendment) Bill No. 29 of 2022 was deferred to allow for intensive interrogation of the constitutional review of the issues raised with his ministry regarding the Bill.
Human rights approach
“Government seeks to satisfy itself that the views and concerns of all stakeholders pertaining to the interpretation of the Constitution were considered and the provisions of the Revision of Laws Act had been thoroughly interrogated and made clear,” it said.
“There is opportunity to resolve the constitutional issues raised in this matter as there is political will.
“The Government of Botswana has declared, through its President, Advocate Gideon Duma Boko, that it is has adopted the Human Rights-Based Approach to Development, which places human rights at the centre of development. This is one of the strengths of our human rights system in Botswana.”
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