Case Summary and Outcome

The Court of Appeal of Botswana ruled that the right to freedom of assembly and association protected the rights of an LGBT advocacy group to promote the rights of LGBT individuals and to lobby for legal reform. The Minister of Labour and Home Affairs upheld the decision of the Department of Civil and National Registration  refusing to register Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) on the grounds that the organisation’s objectives were either contrary to public morality or would encourage the commission of criminal offences. The Court of Appeal reasoned that the right to form associations to advocate for legal change is a fundamental element of the right to freedom of assembly and association and that the refusal to register LEGABIBO was an unjustifiable limitation of its members’ rights. In so doing the Court marked a significant and positive shift in attitudes toward same-sex orientation in Botswana.

Facts

In February 2012 the civil society group, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) sought to register as a society under the Societies Act Cap 18:01. The Act requires all societies apply for registration within 28 days of their formation.

In March 2012 the Director of the Department of Civil and National Registration refused LEGABIBO’s application on the basis of section 7(2)(e) of the Societies Act which permits the director to refuse to register a society “where it appears to him that any of the objects of the society is, or is likely to be used for any unlawful purpose or any purpose prejudicial or incompatible with peace, welfare, or good order in Botswana”. The objectives of LEGABIBO are to promote the health and welfare of lesbian, gay and bisexual individuals in Botswana and to lobby for the decriminalisation of same-sex relationships in the country. Same-sex sexual conduct is criminalised by sections 164 and 167 of the Penal Code in Botswana.

LEGABIBO appealed the refusal of its registration application to the Minister of Labour and Home Affairs. In its appeal, LEGABIBO submitted that the Constitution does not prohibit same-sex relationships  and that the Director’s refusal was unconstitutional. In October 2012 the Minister notified LEGABIBO that its appeal had been unsuccessful as he believed that the objectives of LEGABIBO would result in criminal behaviour by encouraging same-sex sexual acts.

Thuto Rammoge and other members of LEGABIBO filed an application in the High Court in Gaborone seeking a declaration that the Minister’s refusal infringed their members’ rights to freedom of expression (under section 12 of the Constitution) and to assemble and associate (under section 13 of the Constitution) and an order setting aside the Minister’s decision and permitting the registration of LEGABIBO.

The High Court held that the refusal to register LEGABIBO was unconstitutional and unreasonable. It held that LEGABIBO’s objectives were all lawful as advocating for decriminalisation of same-sex sexual acts did not equate to the commission of the criminal act of same-sex sexual acts. The High Court set aside the Minister’s decision.

The Attorney General appealed the judgment to the Court of Appeal. She argued that the High Court erred both in deciding that no reasonable person in the position of the Minister could find that LEGABIBO’s objectives were unlawful and in finding that homosexual persons were included in the constitutional definition of “person”. She submitted, in the alternative, that if the Minister’s decision did limit constitutional rights, those limitations were justifiable (para. 21).

Decision Overview

Kirby JP delivered the unanimous judgment of the Court of Appeal.

Rammoge had not challenged the constitutionality of any provisions of the Societies Act, and so the only question was whether the Minister’s decision to refuse to register LEGABIBO was an unjustifiable infringement of the rights protected in the Constitution. Kirby stated that the only constitutional provision that needed to be considered was section 13 – the protection of the right of freedom of assembly and association. Section 13 permits limitations to the right when that limitation is “done under the authority of any law”, is “reasonably required in the interests of [inter alia] public order [or] public morality” and is “reasonably justifiable in a democratic society” (paras. 38-39).

Kirby first stated that there was no reference to “public morality” in the Societies Act even though both parties had referred to public morality during argument. Therefore, any reliance on issues of “public morality” by the Minister would “not be a valid exercise of discretion” (para. 39).

The Botswana case of Kanane v. S (2003) 2 BLR 37 CA was a central part of both parties’ legal argument. The Attorney General had argued that the case was authority for her argument that “homosexual persons are not ‘recognised’ as such by the Constitution, and that they are accordingly not persons entitled to the fundamental rights conferred thereby”. Rammoge had argued that the case “confirms the right of gays and lesbians freely to associate with one another subject to the law”. Kanane had held that the offence which made same-sex sexual acts illegal was constitutional, and that “the time had not yet arrived (as at July 2003) to treat gays and lesbians as a group deserving of inclusion in the [constitutional provision] in respect of which discrimination was unlawful”. Kirby noted, however, that in the Kanane case the Court of Appeal had recognised that even though same-sex sexual activity was prohibited that did not prevent gay and lesbian individuals from associating with one another (paras. 41-45).

Kirby referred to the Kanane case’s discussion on the developments around the world in which same-sex sexual conduct had been decriminalised. Kirby said that although those developments were not directly relevant to the present case they did “show a more tolerant and compassionate attitude towards previously taboo subjects throughout the world,”. He said that Rammoge had been able to “lead compelling evidence that attitudes in Botswana have, in recent years, softened somewhat on the question of gay and lesbian rights”. Kirby referred to a number of laws and policies in Botswana which had ensured protection of gay and lesbian individuals. He said that the Court would address the Attorney-General’s  grounds of appeal against that background (paras. 47-53).

Kirby considered whether the Minister’s decision infringed the rights to freedom of assembly and association. He rejected the Attorney General’s submission that the Constitution “does not recognise homosexuals” and said that “[t]here is no legislation in Botswana that prohibits anyone from being lesbian, gay or bisexual, and it would be difficult to formulate any logical basis for doing so”. He said that the Kanane case had permitted the outlawing of certain sexual practices, but that “had been done irrespective of the gender and sexual orientation of the perpetrator” and that the case did not “purport to exclude homosexuals from the ambit of ‘every person’ as referred to in … the Constitution” (paras. 55-57).

Kirby then examined the Minister’s explanation for his refusal to register LEGABIBO, namely that allowing the registration would enable the commission of unlawful acts.  He acknowledged that if this was indeed the case the Minister would be entitled to refuse the registration of LEGABIBO in line with the Societies Act. However, Kirby held that the objectives of LEGABIBO were not to pursue unlawful activity. He characterised its objectives as “to advance the interests of gay, lesbian and trans-sexual persons in Botswana and generally to educate the public on human rights aspects of sexual orientation”. He said that the “real question is whether there is anything unlawful or offensive about advocating for a change in these laws [criminalising same-sex sexual conduct] so as to decriminalise the forbidden aspects of same-sex relationships”. Kirby said that advocating for legal change is “the democratic right of every citizen” (paras. 63-64). Accordingly, Kirby agreed with the High Court that it was “entirely unreasonable to refuse registration on the ground that LEGABIBO, in terms of its objects, was likely to be used for unlawful purposes” (paras. 65-66).

Kirby then looked at whether the Minister’s decision was unconstitutional. He said that the members of LEGABIBO sought to “register a society for the protection of their interests, so that they could freely assemble and association with each other and with others who support their aims”, a goal that is specifically protected by section 13 of the Constitution which protects the right of persons “to form or belong to trade unions or other associations for the protection of his or her interests”. Further, the right is protected by  by three international instruments to which Botswana is a signatory: the African Charter on Human and People’s Rights; the Universal Declaration of Human Rights; and the International Covenant on Civil and Political Rights. (para. 68).

Kirby concluded that “the Minister’s decision interferes in the most fundamental way with the respondents’ right to form an association to protect and promote their interests”.

Kirby referred to the Kenyan case of Gitari v. Non-Governmental Organisations Board Petition No 440 of 2013 in which the High Court had held that “the right to associate belongs to everyone” and that “it does not matter if the views of certain groups or related associations are unpopular or unacceptable to certain persons outside those groups” (para. 72).

Kirby confirmed that the Constitution must be given a generous interpretation, and that the “test of what is reasonably justifiable in a democratic society is an objective one”. He said that the party seeking to justify a limitation to a fundamental right bears the onus of proving that the limitations within the Constitution apply directly to the specific limitation (para. 73).

Relying on the Canadian case of R v. Oakes [1986] 1 S.C.R 103, Kirby said that the Attorney General would have to demonstrate that the action taken was proportional to the harm suffered by the infringement of the right.  He stated that it cannot “be said to be proportional if a society formed to pursue a number of honourable objectives, including advocacy, public health and education, was refused registration purely because, in the subjective view of the Registrar (or of the Minister), it was suspected of being likely to promote unlawful activities”. In the absence of any evidential basis for such a belief the limitation to the right could not be permissible (para. 76).

Accordingly, Kirby held that the Minister’s decision was unconstitutional and should be set aside and ordered  the Registrar of Societies to register LEGABIBO in accordance with the Societies Act.