While many people were defeated by a heat wave that swept through Gaborone in the first two weeks of the year, supporters of LeGaBiBo (Lesbians, Gays, Bisexuals of Botswana) were amped for the face off against the state at the Botswana High Court of Appeal. The drama, which started in 2012, came to what is hoped will be the closing scenes on Jan. 15 as a five-judge bench heard the arguments of Otsile Rammidi, state representative from the attorney general’s chambers, and Dick Bayford, first counsel for LeGaBiBo.
Those following the case will know that Dow and Associates is the managing firm on the case, however, since Unity Dow was elected to parliament in 2014, Bayford — an equally seasoned human rights lawyer — has been called on to take the baton to finish the race. Dow and Associates partner, Lesego Nchunga, flanked him as the embodiment of empowered Batswana women and the country’s progressive youth.
The LGBTI+ world celebrated in November 2014 as High Court Judge Terrence Rannowane proclaimed “refusal to register LeGaBiBo was not reasonably justifiable under the constitution.” In handing down his ruling, Rannowane played a pivotal part in the two-year long battle between the government of Botswana and the would-be organisation. Rannowane’s interpretation of the case facts shifted not only the way the applicants saw their future possibilities but it also dealt a huge blow to the government’s secure — albeit false — stance that LeGaBiBo aims to “promote homosexuality in Botswana.”
The government didn’t miss a beat to file its appeal of this judgment and did so in February 2015. This move prevented LeGaBiBo from filing application forms with the Registrar of Societies yet the wait may be over soon following the Jan. 15 proceedings. LeGaBiBo Gender and Youth Officer Botho Maruatona said in an interview, “We don’t want to fight the government; we want to get registered so that we can start working with them on matters concerning LGBT Botswana.”
This help is, according to Rammidi’s argument, exactly what the government fears.
Following embarrassing himself by seeking an extension on the hearing date due to having been on holiday and so “needed more time to beef up our heads of argument,” Rammidi was starting out further disadvantaged in the supporters’ eyes. The case presented against LeGaBiBo helping the government disseminate information on sexual health, HIV/AIDS and human rights, is that the state fears this will result in indirect promotion of rampageous homosexual sexual activity across the country. After questions from the bench on whether there was any proof of this, Rammidi’s scapegoat was the analogy that though there may not be proof, would the state be requested to register an organization of cannibals who may well say they won’t promote cannibalism but whose existence would mean digression from national laws. This became the running joke during recess.
This was seconded with the case that “Botswanans are not ready” and by registering the organization this would cause unrest by defying “public morality.” Though there is no clear indication or quantitative evidence that either one of these statements is true, recent remarks by the former president of Botswana, Festus Mogae, that “we are limited in our knowledge and must be open to new discoveries” might be cause for the government rethinking its opposition.
After the roll-call proceedings, which took place on Jan. 8, Nchunga, had expressed her confidence that the appeals court will follow suit with the standing ruling since the constitution provides for everything they are standing for.
Nchunga further added that should they win again, the case is “going to matter a lot to the history of Botswana when we speak to human rights, and when we speak of interpretations of the constitution, when we speak to the rights of the LGBT community and the rights of minorities at large.” She has, however, warned against wild international media frenzy detracting from the local relevance asking that “we want this case to be seen as ours” but she confirms that, “there are other ways of helping in terms of advocacy, forming groups and supporting the intended organization itself.”
No date has been set yet for the handing down of the judgment on this case, but Judge Kirby advised that it will be within this first session of hearings — which ends in March. The parched court grounds erupted in color as rainbow flags and umbrellas — which had been reserved for the day’s end — came out for a community photo shoot. For the first time a long time in Gaborone, we saw the faces of activists, friends, allies, and relatives gathered to view the saga of a government against its people. The hope is that in Botswana celebrating 50 years of independence this year, the words of the unifying national anthem may be played out in the High Court of Appeal judgment in favor of a relentless LGBT community.
Katlego K Kol-Kes is an award-winning writer, educator, performer and Botswana’s first openly transgender public figure.