BOTSWANA GAYS GO TO COURTGays in Botswana have gone to court to challenge the legality of Section 164 of the Penal Code that criminalizes same sex relationships. The Attorney General is cited as the first respondent in the court application. Caine Youngman, aged 29, and a member of an unregistered gay society called the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), representing other members of the gay community in Botswana states in his affidavit availed to members of the press on Wednesday that he had never been able to freely express his sexuality because of the law that criminalizes same sex between people of the same sex.
He said that the offence referred as ‘carnal knowledge against the order of nature’ as well as social attitudes which stigmatize and discriminates against people with his sexual orientation has seen him crossing the border into South Africa where his sexuality is recognised and protected by the law.
‘I hate to have to cross the border constantly as I suffer grave inconveniences, both financially and travel time. Sometimes I fear for my safety in South Africa, in fact I was nearly hijacked before. Many a times I feel like a criminal when I enjoy my sexuality and I suffer prejudice in the communities when I openly express my sexuality,’ said Youngman.
He said LEGABIBO submitted its application for registration to the Registrar of Societies on or about the 27th of July 2005, which was duly received and acknowledged by the Registrar.
He said however that no response was received from the Registrar despite several demands until September 18 2007 when they received a letter denying the organisation registration on the grounds that the country’s constitution does not recognise homosexuals.
Youngman agues that the existence of Section 164 law effectively sanctions discrimination against gays on the basis of sexual orientation and violates fundamental human rights and freedoms inherent in all human beings as guaranteed and protected by the Constitution of Botswana. ‘The sphere of private life intimacy and autonomy must allow me, like all other human beings, to develop human relationships without interference from the outside community or the state. Therefore, it is submitted that sexual intimacies between individuals whether heterosexual or homosexual in private fall within the ambit of protected privacy,’ says Youngman.
He argues that therefore, every Act that offends against human dignity constitutes a violation of the right to life.
However for it to stand, such a law would have to be in accordance with reasonable, fair and just procedure established by law and must stand the test of the fundamental rights and freedoms.
‘I therefore submit that by criminalizing my right as a responsible and law abiding citizen to have sex with other consenting adults in the manner that satisfies my sexual orientation, the Penal Code offends against and impairs my and other gay people the expression of our human self and thus violates our right to live with human dignity,’ said Youngman.
At the time of going to press the Attorney General had not filed opposing affidavit. (southerntimesafrica.com)
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