In November 2014, the High Court of Botswana ruled that Lesbian Gay Bisexual and Transgender (LGBT) rights groups are legally entitled to register their organizations. According to Human Rights Watch (HRW), same-sex conduct is outlawed in thirty-eight African countries, Botswana included. However, while Botswana’s penal code condemns same-sex conduct, it does not legally prohibit its citizens from identifying as a lesbian, gay, or bisexual. When denied an application to formally register their LGBT group, Lesbians, Gays, and
Bisexuals of Botswana (LEGABIBO) appealed the decision to the Botswana High Court, who overturned the decision and allowed LEGABIBO to formally register as a national organization.
The lower courts, in denying LEGABIBO’s application, argued that allowing LEGABIBO to register would violate section 7(2)(a) of Botswana Societies Act, which allows for discretion in recognizing organizations that could potentially be prejudicial or interfere with the country’s peace and good order. LEGABIBO argued that refusing to recognize LGBT rights groups as organizations is unconstitutional because it violates the groups’ freedom of expression, association, and assembly and the Botswana High Court agreed. These rights are enumerated in the Botswana Constitution, in Articles 12 and 13 of Chapter II. In addition, Articles 19, 21, and 22 of the International Covenant on Civil and Political Rights (ICCPR), which Botswana signed and ratified in 2000, also uphold these basic human rights.
The High Court’s decision is viewed as “a milestone in the fight for LGBT people’s right to equality under the law,” according to a HRW researcher. Without proper recognition from the government, a group such as LEGABIBO would not be able to carry out many of its important organizational functions, and would be denied access and participation to national programs. Furthermore, the judge highlighted that the group’s mission is not founded on illegal acts, such as interfering with the country’s peace and good order. Instead, LEGABIBO plans to carry out political lobbying and to decriminalize same sex relationships, actions that do not reasonably justify the denial of the registration application.
This High Court decision brings hope and justice not only to the people of Botswana, but perhaps also to those of other African countries who are facing similar problems. For example, countries such as Algeria, Liberia, Tanzania, and Zimbabwe, also criminalize homosexual acts, but have no laws prohibiting a person from identifying as lesbian, gay, bisexual, or transgender, much like Botswana. It is possible that LGBT rights groups in other countries where same-sex conduct is illegal will use Judge Rannowane’s decisions to advance their own battle for equal rights under the law.