Nearly 30 years after the now famous incident in Maun when police raided two consenting men who were engaged in sexual intercourse, the country appears to be still battling the resolve the question of whether or not it accepts same sex relations.
The December 26, 1994 incident triggered a chain of events that led to the High Court which ruled in 2003 that, essentially, the country was not ready for homosexuality. More than a decade later, the Court of Appeal, the country’s highest court, ruled that in fact, Botswana was ready. The top court ruled that sections of the Penal Code criminalising same sex relations were unconstitutional and repealed them.
That should have been the end of the matter, Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQI) citizens and their legal advocates say.
The Justice Ministry’s recent decision to introduce a bill in Parliament seeking to amend the constitution to reflect the Court of Appeal, stoked outrage from both sides of the debate, with emotional demonstrations from both the LGBTQI community and some churches. While the religious leaders said changing the constitution would effectively be surrendering the country to unbiblical practices, the LGBTQI community said the bill would trigger a constitutional crisis and questions of separation of powers, as the CoA had already made its decision.
On Tuesday, Justice Minister, Ronald Shamukuni, deferred the bill, explaining that he would further interrogate the law. He however prefaced his remarks by stating that he believed his Ministry was legally correct to approach Parliament with the bill.
“I seek to satisfy myself that the views and concerns of all stakeholders pertaining to interpretation of the Constitution are considered.
“It is on the basis of the above that I beg to defer the Bill to allow for intensive interrogation of the Constitutional issues raised with my ministry regarding the Bill,” he said.
By deferring and not withdrawing the bill, analysts say Shamukuni sought the elusive middle ground in the debate, one that temporarily placates both sides and calms tensions.
In fact, responding to the latest developments, both the churches and the LGBTQI community appeared to be supportive of the move.
“We appreciate our Parliament for heeding the voice of the majority voters and showing its commitment to consultation and morero,” the Evangelical Fellowship of Botswana (EFB) said this week.
“We eagerly await the minister's findings and trust that he will give the public feedback soon and thus bring the matter to closure.
“We believe this is a sensitive matter that should not be left pending.
“We call upon all Christians and Batswana who love their destiny and country to reject homosexuality in all its forms and articulate the dire consequences legalizing homosexuality will have on future generations.”
The EFB had previously said passing the bill would open the “flood gates of immorality, abomination in the nation” such as demands for same sex marriage and changes in the school curriculum to “teach our children such practices”.
For its part, the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), the representative organisation for the LGBTQI said the bill would have clearly been an assault on the judiciary in asking Parliament to debate whether or not to delete laws which have been struck down by the courts.
“This does not happen in a rule of law country like Botswana, and the laws of Botswana, particularly the Constitution, being the supreme law, and the Revisions of Laws Act, would not authorise this Act,” said LEGABIBO CEO, Thato Moruti.
“We are now pleased that our parliamentarians are, at least for now, not under pressure from any sector or sectors of society to vote to reinstate laws which have been struck down by our courts.”
He added: “Political leaders should not allow themselves to be threatened or coerced into violating the rule of rule by way of votes for or against during national or other elections.”
The issue now returns to limbo and the 30-year old question of homosexual relations in Botswana remains unanswered. Meanwhile, however, analysts say those in the LGBTQI community are not waiting see whether the bill returns to Parliament.
“People do not stop being gay while waiting for laws,” a commentator said this week.
“The fact that members of the LGBTQI have a lawfully registered organisation, have met President Mokgweetsi Masisi and do not suffer harassment from law enforcement shows that society in general have accepted that there are citizens who are different.
“In fact, since that incident in 1994, you would be hard pressed to find any arrest of anyone for same sex relations.
“The police know and have seen gay people at courts during these cases and during pride marches and they have an idea what goes on behind closed doors.
“They also accept that it’s not their business. It’s not enforceable.”
Be that as it may, the lack of finality however means members of the LGBTQI do not yet have the required legal standing to access appropriate healthcare and other public services. Even with law enforcement, the absence of a final answer means they cannot demand appropriate treatment such as being housed in the right police cells during arrest.
The wait for a final answer continues.
