ditshwanelo tsa ditabane ke ditshwanelo tsa batho bohle, or is that the case?

By Vusi Msiza

June 24, 2005: Gaborone - Ditshwanelo is an advocacy organisation in Botswana which was founded by 1993. The organisation plays a key role in the protection and promotion of human rights in Botswana. It seeks to educate, research, counsel and mediate on human rights issues, with particular reference to people who are marginalised and disempowered. Ditshwanelo means "rights" in Setswana.

The mission statement of Ditshwanelo states that "the Centre seeks to affirm human dignity and equality irrespective of gender, ethnicity, religion, sexual orientation, social status, or political convictions. In pursuit of this mission, we seek to educate, research, counsel, and mediate on issues of human rights, with specific reference to the marginalised and disempowered. However, due to our commitment to this indivisible nature of human rights, this mission extends to regional and international levels."

Ms Alice Mogwe, the director of Ditshwanelo, is a qualified lawyer and the founder of Ditshwanelo. Ditshwanelo has received international awards for its human rights work and has raised the profile of minority groups who are victims of discrimination in Botswana. In May 2000, the International Gay and Lesbian Human Rights Commission (IGLHRC) honoured Ditshwanelo with the Felipa De Souza Award. Ditshwanelo and Lesbians, Gays, Bisexuals of Botswana (legabibo) developed and published a lesbian and gay human right charter in 1998 and the centre coordinated lesbian and gay projects.

Lesbians, gays and bisexuals used to meet regularly under the auspices of Ditshwanelo. Regular LGBT workshops are held there and during a conference on Human Rights and Democracy a representative of LEGABIBO made a presentation. In 2001 a workshop was also held on LGBT safer sex in relation to HIV/AIDS prevention. Ditshwanelo has also interacted with government and the United Nations Development Programme on policy issues. Ditshwanelo continues to advocate for LGBT people and lobby for the decriminalisation of same sex relations.

Ditshwanelo has also been involved in the case of Mr Utjiwa Kanane (a Botswana citizen) and Mr. Graham Norrie (a British citizen) who were arrested in December 1994 and charged - under sections 164 and 167 of the Botswana Penal Code - with "engaging in unnatural acts and indecent practices between males".

In April 1995, at their initial hearing at the Magistrate's Court in Maun, Mr. Kanane pleaded not guilty to the charges laid against him. At this stage, Mr. Kanane and Mr. Norrie were jointly represented by a local attorney, Mr. Joe Malatsi, who has since passed away. In May 1995, a separation of trials was granted and Mr. Graham Norrie pleaded guilty to the charge of indecent practices between males. He was fined and subsequently left Botswana.

Mr. Kanane, being indigent and without means, found himself without any legal representation. He was granted bail and the next trial date was set for 5 September 1995. Ditshwanelo then made efforts to raise money for his legal defence as their interest in the case arose from the fact that they believe that the criminalisation of same sex sexual relations is a human rights issue. The implication of sections 164 and 167 of the Botswana Penal Code is that homosexuality is a criminal offence. The constitutional challenge to these sections, which was raised in the case, was of great importance to the lesbian, gay and bisexual community in Botswana.

In 1999, through informal discussions with the State, Ditshwanelo was able to negotiate for the charges to be dropped. However in 2000, with a change in State Counsel at the Attorney General's Chambers in Francistown, they were informed that this was not a possibility. In April 2001, Ditshwanelo received notification from the Francistown High Court that the matter was to begin in that court on 31 May 2001. Ditshwanelo were requested to inform the High Court of the name of Mr. Kanane's legal representative.

Ditshwanelo secured the services of a local barrister (advocate in South African terms), Duma Boko, to challenge the provisions of Sections 164 and 167 of the Penal Code on constitutional grounds before the High Court in Francistown. Mr Boko is a lawyer with a profound interest in human rights. He had in the recent past done research on the issue of homosexuality and the decriminalisation of it. He had also participated in Ditshwanelo related conferences and workshops.

On 22 March 2002, the High Court (with Judge Mwaikasu presiding) upheld the constitutionality of Sections 164 and 167 of the Penal Code. It held that the provisions of the Botswana constitution that protect rights to privacy, association, and freedom of expression could be curtailed by legislation enacted to support "public morality." The Court found that Sections 164 and 167 prevented harm that could be caused to public morality due to "carnal knowledge against the order of nature". Additionally, it found that although lesbian intercourse was not considered to be any sort of carnal knowledge (i.e., neither natural nor unnatural), there was no gender discrimination in the penal code. The case was taken on appeal before the Court of Appeal in July 2003. Judgement was passed in the case on 30 July 2003 by a full bench of 5 judges of the Court of Appeal (which was necessary for a constitutional matter).

Their decision was as follows:

1. Section 167 of the Penal Code as it stood when Mr Kanane was charged under it, was a violation of the Constitution. Therefore, Mr Kanane could not be charged under that provision. Their decision was based on the fact that the law at the time discriminated on the basis of gender. However, the penal code was amended in 1998, making the section applicable to both males and females.

2. Section 164 (c) did not discriminate on the basis of gender and was therefore not unconstitutional. The case relating to the charge under that section was remitted to the Magistrate's Court at Maun. However, the Court of Appeal made a recommendation to the Attorney General to consider the fact that the case had been going on for eight years and therefore whether "it would be fair or constitutional to proceed with the prosecution".

3. Despite the "well researched and ably presented argument" of Mr Boko, regarding the discriminatory effect of section 164 against "gay men and lesbians", the court had "indications before it that the time has not yet arrived to decriminalise homosexual practices even between consenting adult males in private. Gay men and women do not represent a group or class which at this stage has been shown to require protection under the constitution." In determining this, they considered whether "public opinion in Botswana has so changed and developed that society... demands such decriminalisation". They stated that there was no evidence before them to show that public opinion in Botswana has so changed or developed. They found that public interest must therefore always be a factor in the court's consideration of legislation particularly where such legislation reflects a public concern.

4. They found that the sections of the constitution did not hinder "gay men and lesbians" in their association with one another (as submitted by Mr Boko). They found nothing to prevent them from associating within the confines of and subject to the law.
5. However, the court dissociated itself completely from the views of Judge Mwaikasu of the High Court. Judge Mwaikasu upheld the constitutionality of the Penal Code, stating that discrimination was permitted by the Constitution on the grounds of public morality. He stated, in his judgement, that "sexual liberation has been a social, spiritual and physiological disaster" and demonstrated "the likely harmful effect both to the individual and society as a whole when liberal sexuality is allowed to erode moral values in a given society".