IN THE HIGH COURT OF THE REPUBLIC OF BOTSWANA
HELD AT
Case No.
In the matter between
THUTO RAMMOGE
RONALD DADANI
ATLA POELETSO SETSHEGETSO
RATANANG MOSWEU
TEBOGO MOTSHWANE
ODIRILE LETSATSI
KATLEGO SAINT
CHRISTOPHER BAREKI
AMOGELANG SEKALE
THOLEGO SHABANE
TEBOGO MOATSHE
TINAO SETAELO
TEFO RALEBALA
OABONA SEPORA
ANITA TAU
BEVAN NONOFO ASEKENG
TEFO NYEPETSI
LEMMY MOKGOBYE
OTENG AONE CHIMELA
CAINE JASON YOUNGMAN
1ST APPLICANT
2ND APPLICANT
3RD APPLICANT
4TH APPLICANT
5TH APPLICANT
6TH APPLICANT
7TH APPLICANT
8TH APPLICANT
9TH APPLICANT
10TH APPLICANT
11TH APPLICANT
12TH APPLICANT
13TH APPLICANT
14TH APPLICANT
15TH APPLICANT
16TH APPLICANT
17TH APPLICANT
18TH APPLICANT
19TH APPLICANT
20TH APPLICANT
And
THE ATTORNEY GENERAL
RESPONDENT
APPLICANTS’ HEADS OF ARGUMENT
TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................... 2
BRIEF BACKRGOUND TO THE APPLICATION ................................................................. 3
GROUNDS FOR JUDICIAL REVIEW ON WHICH THE APPLICATION IS BASED ........ 5
The law relating to judicial review ......................................................................................... 5
1
The grounds for judicial review in the present matter ........................................................... 6
KEY PRINCIPLES OF CONSTITUTIONAL INTERPRETATION ..................................... 11
THE REFUSAL TO REGISTER VIOLATES SECTION 3 OF CONSTITUTION ............... 12
THE REFUSAL TO REGISTER VIOLATES SECTION 7 OF CONSTITUTION ............... 15
THE REFUSAL TO REGISTER VIOLATES SECTION 12 OF CONSTITUTION ............. 17
THE REFUSAL TO REGISTER VIOLATES SECTION 13 OF CONSTITUTION ............. 20
European Court of Human Rights case law ......................................................................... 22
Comparative case law from other jurisdictions .................................................................... 25
THE REFUSAL TO REGISTER VIOLATES SECTION 15 OF CONSTITUTION ............. 27
THE REFUSAL TO REGISTER VIOLATES THE RIGHT TO DIGNITY .......................... 29
CONCLUSION ........................................................................................................................ 30
LIST OF AUTHORITIES........................................................................................................ 31
INTRODUCTION
1. This case is about the ability of citizens to associate in a manner recognised by the State
and to share their opinions in a collective manner. The issue is fundamental to a
democratic society.
2. The participation of citizens in the democratic process is to a large extent achieved
through belonging to associations in which they are able to pursue shared objectives
collectively.
3. The State has an obligation to support the exercise of these rights, especially in the case
of minority groups. In this respect, it does not matter if the views of such associations are
unacceptable or unpopular. The principles of pluralism and democracy imply that
freedom of association and expression is always useful because it increases respect for
others’ ideas, citizen participation in the democratic system and social cohesion. In this
context, it cannot be said that an organisation which promotes the universality of human
rights and aims to deal with prejudice is not for the common good.
4. This point was made eloquently in the Philippines Supreme Court case of Estrada v
Escritor1“In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public square where people deliberate the
1
455 Phil. 411 (2003), (A.M. No. P-02-1651 August 4, 2003 & June 22, 2006).
2
order of their life together… In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public
deliberation… Nevertheless, in the very act of adopting and accepting a constitution and
the limits it specifies – including protection of religious freedom ‘not only for a minority,
however small – not only for a majority, however large, but for each of us’ – the majority
imposes upon itself a self-denying ordinance. It promises not to do what it otherwise
could do: to ride roughshod over the dissenting minorities.”
5. Freedom of association, assembly and expression reflects paramount values in a
democratic society. The Botswana Constitution confirms this principle by providing that
the rights to freedom of association and expression may only be limited if such a
limitation is reasonably justifiable in a democratic society. The refusal to grant legal
status to an organisation amounts to an infringement of these rights.
6. Freedom of association and expression imposes an obligation on authorities to take
positive measures to promote diversity. Linked to this is the recognition of the inherent
dignity of each person, and the liberty of every person to make a choice to form and
belong to an association which promotes his or her interests.
7. The applicants submit that the refusal to register their organisation, LEGABIBO, cannot
be justified by a mere desire to avoid the discomfort and unpleasantness that may
accompany an unpopular viewpoint.
8. The applicants submit that the court’s role is not to impose its own view of acceptable
behaviour. Rather, the court is to apply the Constitution and laws as best it can,
uninfluenced by public opinion, and confident in the knowledge that our democracy is
resilient enough to withstand vigorous debate.
9. The applicants submit that there is nothing inherently controversial in their application for
registration of an association. The only issue at stake is whether the government should
give formal recognition to their organisation. Once registered, LEGABIBO will provide
an opportunity for lesbians, gays and bisexuals to be part of an association providing
information on human rights and serving as an advocate for their rights, particularly the
right to access to health services.
BRIEF BACKRGOUND TO THE APPLICATION
10. This application is based on the decision by the Minister of Labour and Home Affairs to
uphold the decision of the Director of the Department of Civil and National Registration
rejecting the applicants’ application to register an organisation by the name of Lesbians,
Gays and Bisexuals of Botswana (LEGABIBO).
3
11. A brief chronology of events leading up to this application is listed below:
11.1.
On 16 February 2012, the applicants and other individuals not before the court
filed an application for the registration of LEGABIBO in terms of the Societies’ Act.
11.2.
By letter dated 12 March 2012, the Director of the Department of Civil and
National Registration rejected the application for registration on the grounds that
Botswana’s Constitution does not recognise homosexuals and that the application
would violate section 7(2)(a) of the Societies Act.
11.3.
On 12 April 2012, the applicants submitted an appeal against the
administrative decision of the Director.
11.4.
On 5 October 2012, the Permanent Secretary of the Ministry of Labour and
Home Affairs communicated the decision of the Minister of Labour and Home
Affairs to uphold the decision of the Director rejecting the application for
registration.
11.5.
In response to the filing of further grounds of appeal by the applicants’
attorneys, the Permanent Secretary, on 12 November 2012, reaffirmed the Minister’s
earlier decision.
11.6.
Accordingly on 14 December 2012, the applicants gave notice to the Attorney
General of their intention to commence proceedings in the High Court.
12. The above events leading up to this application are not in dispute.
13. The locus standi of the applicants is not an issue in this case. The applicants all have a
substantial interest in the case.2
14. The applicants argue that the decision of the Minister of Labour and Home Affairs to
refuse registration of LEGABIBO is in contravention of their rights in terms of sections 3,
7, 12, 13 and 15 of the Constitution of the Republic of Botswana, as well as their right to
dignity.
15. The respondents deny that the applicants’ rights have been violated and argue that section
7(2)(a) of the Societies Act in any event constitutes a justifiable limitation of the
applicants’ constitutional rights.
2
Kamanakao and others v Attorney General and another 2002 (1) BLR 110 (HC).
4
GROUNDS FOR JUDICIAL REVIEW ON WHICH THE APPLICATION IS BASED
The law relating to judicial review
16. Botswana courts have long recognised that the remedy of applications for judicial review
under common law.3
17. The remedy of judicial review enables the courts to control excesses in the exercise of
administrative powers by officials empowered by statute.4
18. The South African Constitutional Court in Pharmaceutical Manufacturers Association of
SA and Another; In re Ex Parte President of RSA5 confirmed that the control of public
power by the courts through judicial review is a constitutional matter and that powers
conferred by legislation have to be exercised within the ambits of fundamental rights and
the rule of law.
19. It is well understood that judicial review is concerned with the decision-making process
itself, that is, whether the manner in which the decision was reached was proper or not.6
20. Upon judicial review of an administrative decision, the court will inevitably have to look
at the justifiability of the decision in terms of the reasons given and circumstances
surrounding the decision. This process will involve making value judgments or
considering the merits in some way.7
21. Our courts have explicitly stated that they will review and overturn administrative
decisions in circumstances of illegality, irrationality or procedural impropriety.8
22. The main ground upon which the present applicants are seeking judicial review is that of
irrationality. Initially referred to as unreasonableness, this enquiry has more recently been
phrased by Botswana courts as referring to irrationality.9
3
Masitara Investments Pty Ltd v Botswana Unified Revenue Services 2009 (1) BLR 321 HC per Kirby J at 331.
Raphethela v Attorney General 2003 (1) BLR. 591; Pennington v Friedgood and others 2002 (1) SA 251 (C)
applied in Botswana Association of Tribal Land Authorities v Attorney General 2007 (3) BLR 93 (HC);
Mokgare v Chairman, Public Service Commission and another 2007 (2) BLR 90 (HC) citing Johannesburg
Consolidated Investment Co v Johannesburg Town Council 1903 TS 111.
5
2000 (2) SA 674 (CC).
6
Home Defenders Sporting Club v Botswana Football Association 2005 (1) BLR 400 (HC) per Lesetedi J;
Ralekgobo v Matome and another 2010 (2) BLR 513 (HC) per Dingake J, both applying Chief Constable of the
North Wales Police v Evans 1982 (3) All ER 141 (HL).
7
Botswana Association of Tribal Land Authorities v Attorney General 2007 (3) BLR 93 (HC); Mokgare v
Chairman, Public Service Commission and another 2007 (2) BLR 90 (HC).
8
Lord Diplock in Council of Civil Service Unions and others v Minister for the Civil Service 1984 (3) All ER
935; Attorney General and another v Kgalagadi Resources Development Company (Pty) Ltd 1995 BLR 234
CA; Raphethela v Attorney General 2003 (1) BLR 591 at 596 D-F applied; Air Cooling Maintenance Pty Ltd v
Attorney General and others 2010 (1) BLR 527 (HC) at 531.
9
Masitara Investments Pty Ltd v Botswana Unified Revenue Services 2009 (1) BLR 321 (HC) per Kirby J at
335.
4
5
23. The unreasonableness enquiry was formulated in the English case of Associated
Provincial Picture Houses Ltd v Wednesbury Corporation.10 Lord Green stated that a
court can only interfere if a decision at issue was so unreasonable that no reasonable
authority could ever have come to it. Commonly referred to as the Wednesbury test, this
formulation has frequently been applied in Botswana courts.
24. The unreasonableness enquiry has been interpreted broadly to include situations in which
administrators’ decisions involve irrelevant considerations, improper purposes, mistakes,
misunderstandings, error of law and unfair discrimination.11
25. Essentially, an administrative decision-maker must apply his mind to the matter in
accordance with the terms of the prevailing statute and the tenets of natural justice. This
required practice is not followed for example, where a decision has been arrived at
arbitrarily or capriciously; or as the result of mala fide or unwarranted adherence to a
fixed principle; or in order to further an ulterior or improper purpose; or where the
decision took into account irrelevant considerations and ignored relevant ones. 12 A
decision would accordingly also be irrational where it ignored rights enshrined in the
Constitution.
26. Our courts have thus held that a decision can be set aside based on irrationality13 and that
the test for whether a decision was irrational is an objective one.14
The grounds for judicial review in the present matter
27. Section 6 of the Societies Act requires local societies to apply for registration or
exemption from registration under the Act. Section 6(2)(a) provides that the Registrar
“shall register the society” once the application has been received. Even though this
section is peremptory, section 6(3) does require that the Registrar applies his or her mind
to the application and the Registrar can require additional information “as he or she thinks
necessary to have a proper consideration of the application”.
10
1948 1 KB 223.
Home Defenders Sporting Club v Botswana Football Association 2005 (1) BLR 400 (HC) citing A Bradley
and K D Ewing Constitutional and Administrative Law (11th ed) at 678 and L Baxter Administrative Law (1984)
479-522; Autlwetse v Botswana Democratic Party and Others 2004 (1) BLR 230 (HC) citing W Wade & C
Forsyth Administrative Law (7th ed 1994) 400-401; Botswana Association of Tribal Land Authorities v Attorney
General 2007 (3) BLR 93 (HC) citing Lord Denning in Edwards v Society of Graphical and Allied Trades 1971
Ch 354.
12
Attorney General and another v Kgalagadi Resources Development Company (Pty) Ltd 1995 BLR 234 (CA)
applied the reasoning of Corbett JA in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd
and another 1988 (3) SA 132 (A) at 152A-C. Mokgare v Chairman, Public Service Commission and another
2007 (2) BLR 90 (HC).
13
Dingake J in Ralekgobo v Matome and another 2010 (2) BLR 513 (HC).
14
Botswana Association of Tribal Land Authorities v Attorney General 2007 (3) BLR 93 (HC) citing
Pharmaceutical Manufacturers Association of SA and another: In re Ex Parte President of RSA 2000 (2) SA
674 (CC).
11
6
28. Section 7(2)(a) provides that the Registrar “shall refuse to register” where “it appears to
him that any of the objects of the society is, or is likely to be used for any unlawful
purpose prejudicial to or incompatible with peace, welfare or good order in Botswana”.
29. The Director of the Department of Civil and National Registration based his refusal to
register LEGABIBO on the claim that the “the Constitution does not recognise
homosexuals” and accordingly refused the application for registration in terms of section
7(2) of the Societies Act on the basis that one or more of the objects of LEGABIBO is, or
is likely to be for any unlawful purpose or any purpose prejudicial to or incompatible with
peace, welfare or good order in Botswana. The Minister concurred with this opinion
without adding anything more.
30. The applicants argue that the decision to refuse registration was arbitrary, that the
Director and Minister were misdirected in various respects and that they applied
irrelevant considerations based on errors of law and fact. In addition, the decision had the
effect of violating the applicants’ constitutional rights. As such, the decision of the
Director and Minister was irrational and should be set aside.
31. The claim that “the Constitution does not recognise homosexuals” is incorrect in law.
There is no explicit reference in the Botswana Constitution to “homosexuals” and the
Constitution itself is broad in application. For example, section 3 of the Botswana
Constitution provides that “every person in Botswana is entitled to the fundamental rights
and freedoms of the individual” including the right to freedom of association.
32. Same-sex sexual conduct is prohibited in terms of the Botswana Penal Code, but there is
no law that prohibits anyone from being a lesbian, gay or bisexual person, nor is there any
law which detracts from the fundamental rights of lesbians, gays and bisexuals.
33. Botswana’s Employment Law (Cap 47:01) specifically provides in section 23 that an
employer shall not terminate a contract of employment on the ground of the employee’s
sexual orientation.15
15
23. Restriction of grounds on which employers may terminate contracts of employment
Notwithstanding anything contained in a contract of employment, an employer shall not terminate the contract
of employment on the ground of(a) the employee's membership of a registered trade union or participation in any activities connected with a
registered trade union outside working hours or, with that consent of the employer, within working hours;
(b) the employee seeking office as or acting or having acted in the capacity of an employees' representative;
(c) the employee making, in good faith, a complaint or participating in proceedings against the employer
involving the alleged violation of any law;
(d) the employee's race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour,
creed, health status or disability; or
(e) any other reason which does not affect the employee's ability to perform that employee's duties under the
contract of employment.
7
34. Botswana’s National Strategic Framework for HIV & AIDS 2010-2016 states that “(t)he
national response upholds individual and human rights by promoting the dignity, nondiscrimination and welfare of all people, whether infected or affected by HIV and AIDS
and ensuring equal access to health and social support services regardless of race, creed,
religious or political affiliation, sexual orientation or socio-economic status.”16
35. The inclusion of sexual orientation in national laws and policies shows that the Botswana
government does not seek to discriminate against people based on their sexual orientation
and the Constitution should be interpreted in this light.17
36. In the case of Kanane v the State, commenting on the criminal prohibition of same-sex
sexual conduct, the Court of Appeal noted that there is nothing to prevent gays, lesbians
and bisexuals from forming an association.18
37. There is further no evidence for the suggestion that LEGABIBO’s objectives are, or are
likely to be, used for any unlawful purpose prejudicial to or incompatible with peace,
welfare or good order in Botswana.
38. The Registrar did not substantiate the refusal to register LEGABIBO. The applicants
submit that all reasons for a refusal to register a society should be lawful and
substantiated and that a mere reference to a particular legal provision is insufficient.19
39. From the objectives stated in LEGABIBO’s constitution and submitted as part of the
application process, there is no apparent basis for coming to the conclusion that
LEGABIBO intends to pursue an unlawful purpose or a purpose prejudicial to or
incompatible with peace, welfare and good order.
40. LEGABIBO’s constitution specifically states its objectives as follows:
1)
2)
3)
4)
To integrate a legal, ethical and human rights dimension into the response to the
sexual, reproductive and health rights of all people without discrimination on any
basis whatsoever;
To strengthen the participation of lesbian, gay and bisexual people in the policy fora
in Botswana and at an international level;
To assist in promoting and encouraging networking amongst NGOs and individuals
with similar goals and/or objectives so as to facilitate joint initiatives at solving
problems;
To promote a culture of self-reliance and encourage committed participation from
LEGABIBO members and the community;
16
The Second Botswana National Strategic Framework for HIV & AIDS 2010-2016, National AIDS
Coordinating Agency, 2009, at 18.
17
Diau v Botswana Building Society 2003 2 BLR 409 (IC).
18
2003 (2) BLR 67 (CA).
19
Moscow Branch of the Salvation Army v Russia ECHR 72881/01 (5 October 2006) at paras 81-95.
8
5)
To carry out political lobbying for equal rights and decriminalisation of same sex
sexual relationships;
6) To act on behalf of and to represent lesbian, gay and bisexual people in Botswana
generally and individually;
7) To support public health interests by establishing an environment that enables
lesbians, gays and bisexual people to protect themselves and others from the
violation of their basic human rights;
8) To advocate for the establishment of a legal framework to reach those in society that
are legally and socially marginalised such as lesbians, gays and bisexuals’;
9) To educate the general public on issues of human rights within the context of
sexuality and to facilitate the creation of stakeholders forums nationally to assist in
the dissemination of information; and
10) To research the human rights situation of lesbian, gay and bisexual people in
Botswana and to network with stakeholders in the region in order to establish and
maintain a response to human rights and legal challenges.
41. The refusal to register an organisation violates the right to freedom of association, a right
regarded as supremely important by Botswana courts. Section 7(2) of the Societies Act,
which allows for the refusal of registration under certain circumstances, should
accordingly be interpreted strictly to avoid unjustified infringement of the right to
freedom of association.20
42. Botswana courts have accepted that statutory provisions which interfere with elementary
rights require a strict construction.21
43. A rational construction of section 7(2)(a) would not assume a possible prejudice or
incompatibility with peace, welfare or good order, without some evidence to support such
an assumption. If there is no requirement for evidence, the Director would be able to
violate the right to freedom of association at will by rejecting applications for registration
without providing reasons in support of such rejection. This could not have been the
intention of the legislature and is contrary to the rules of constitutional interpretation and
the audi alteram partem principle.
44. Had the Director applied his mind to the application, he would have sought to confirm his
assumptions about whether section 7(2)(a) is applicable, by requiring additional
information in terms of section 6(3) of the Societies Act. In Botswana Association of
20
Article 10 of the African Charter on Human and Peoples’ Rights also enshrines the right to freedom of
association. The African Commission has stated that: “In regulating the use of this right, the competent
authorities should not enact provisions which would limit the exercise of this freedom. The competent
authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international human rights standards.” Civil Liberties Organisation (in respect of Bar
Association) v Nigeria 2000 AHRLR 186 (ACHPR), at para 15; Jawara v The Gambia 2000 AHRLR 107
(ACHPR); Law Office of Ghazi Suleiman v Sudan 2003 AHRLR 144 (ACHPR).
21
Medical Rescue International Botswana Ltd v The Attorney-General and Others 2006 (1) BLR 516 (CA) per
Tebbutt JP.
9
Tribal Land Authorities v Attorney General the court held that “it is a fundamental
element of fairness that an adverse decision should not be made without affording a
person to be affected by the decision a reasonable opportunity to make representation”.22
45. There is no suggestion that the organisation would use violent or undemocratic means to
achieve its objectives23 nor does the denial of registration serve any substantial
government interest.24
46. The only conclusion that can be drawn from the absence of reasons provided for the
decision is that the Director and Minister did not deem lesbians, gays and bisexuals
worthy of constitutional protection and disapproved of the objectives of LEGABIBO.25
Such determinations made without any evidentiary basis have been rejected by courts as
irrational and misplaced in a democratic society which has as its founding principles the
notions of tolerance, diversity and pluralism.26
47. The application to appeal against the refusal to register LEGABIBO accordingly meets
the grounds for judicial review, in that the Director and Minister acted irrationally by
assuming without evidence that the objectives of LEGABIBO are contrary to section
7(2)(a) and by asserting incorrectly that the Constitution does not recognise homosexuals.
48. The rule of law requires that the power conferred on the Registrar by the Societies Act to
refuse or allow applications for registration not be exercised in a manner that is irrational
or amounts to unjustifiable differentiation. The fact that the Director has sought to refuse
registration of LEGABIBO on arbitrary grounds, based on irrelevant considerations and
in a manner which violates the applicants’ constitutional rights, justifies a decision by this
court to intervene and set the decision aside.27
22
2007 (3) BLR 93 (HC).
Zhechev v Bulgaria ECHR 57045/00 (21 September 2007) at para 47.
24
Gay Alliance of Students v Matthews, 544 F.2d 162 (4th Cir. 1976). The court noted that the University had
provided no evidence of incitement to imminent lawless action, or that members of the Alliance engaged in
illegal sexual practices. The court further held that the University’s denial of registration was not tailored
properly and did not serve any substantial government interest.
25
In the Philippines Supreme Court in the case of Ang Ladlad LGBT Party v Commission on Elections, GR No
190582 (8 April 2010), the court considered the refusal to register a lesbian, gay, bisexual and transgender
organisation as a party for the elections. The court noted that the respondent had failed to explain what societal
ills are sought to be prevented or why it is of the view that admission of the organisation as a party would be so
harmful as to irreparably damage the moral fabric of society – “bare invocation of morality will not remove an
issue from our scrutiny… As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in the party-list system.” The court
found that the respondent had failed to prove its assertions that admission of the organisation as a party would
have been so harmful as to irreparably damage the moral fabric of society.25
26
United Macedonian Organisation Ilinden and others v Bulgaria (no 2) ECHR 34960/04 (8 March 2012) at
para 33(b); Zhechev v Bulgaria ECHR 57045/00 (21 September 2007); Ournio Toxo and others v Greece ECHR
74989/01 (20 October 2005) at para 36-37; Tsonev v Bulgaria ECHR 45963/99 (13 April 2006).
27
Pharmaceutical Manufacturers Association of SA and another; In re Ex Parte President of RSA 2000 (2) SA
674 (CC) citing S Stanley et al De Smith, Woolf & Jowell, Judicial Review of Administrative Action (5th ed
1995) at 14-15.
23
10
KEY PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
49. The Constitution is the supreme law of the land. Any administrative decision that
contravenes provisions of the Constitution is invalid.
50. Botswana courts have accepted the principle of a living constitution, meaning that the
provisions of the Constitution must be interpreted in the light of modern conceptions of
justice.
50.1.
In Attorney General v Dow, Aguda J.A. stated:
“the courts must continue to breathe life into [the Constitution] from time to time as
the occasion may arise to ensure the healthy growth and development of the State
through it…We must not shy away from the basic fact that whilst a particular
construction of a constitutional provision may be able to meet the demands of the
society of a certain age such construction may not meet those of a later age…To hold
otherwise would be to stultify the living Constitution in its growth.”28
51. In addition, it is now widely accepted that constitutional provisions protecting rights
should be given a broad, generous reading and that provisions limiting fundamental rights
should be given a narrow reading.
51.1.
Quoting Attorney General v Moagi, the Judge President in Dow affirmed that
“a constitution such as the Constitution of Botswana…should as far as its language
permits be given a broad construction.”29
51.2.
Similarly, the Judge President in Dow affirmed that “where rights and
freedoms are conferred on persons by the Constitution, derogations from such rights
and freedoms should be narrowly or strictly construed.”30
51.3.
Courts since Dow have continued to apply these principles when interpreting
the ambit of constitutional provisions.31
52. Section 24(1) of the Interpretation Act (Cap 01:04) provides that, as an aid to the
construction of the enactment, a court may have regard to any relevant international
treaty, agreement or convention.
53. Although international law is not binding, it is persuasive and offers guidance on the
nature and scope of existing constitutional rights.
28
1992 BLR 119 at 166 A-D.
Id at 130 D.
30
Id at 132 A.
31
Makuto v The State 2000 (2) BLR 130 (CA); Sesana and others v Attorney General (2006) AHRLR 183 (Bw
HC); Petrus v The State 1984 BLR 14.
29
11
54. It is further well understood that domestic law must be interpreted in a manner that does
not conflict with the international obligations of Botswana.
54.1.
In Dow, Amissah JP held that
“Botswana is a member of the community of civilised States which has undertaken to
abide by certain standards of conduct, and, unless it is impossible to do otherwise, it
would be wrong for its courts to interpret its legislation in a manner which conflicts
with the international obligations Botswana has undertaken”.32
55. Our courts have further recognised the value of comparative law in judicial decisionmaking.
56. Accordingly, the applicants refer to both international and comparative law as a guide to
the interpretation of sections 3, 7, 12, 13 and 15 of the Botswana Constitution.
57. The applicants argue that section 7(2)(a) of the Societies’ Act does not constitute a
justifiable limitation of the applicants’ constitutional rights.
THE REFUSAL TO REGISTER VIOLATES SECTION 3 OF CONSTITUTION
58. The applicants argue that, to refuse lesbians, gays and bisexuals the opportunity to form
an association while allowing other groups that right is to deny the former equal
protection of the law, which is an affront on the Constitution of Botswana.
59. Section 3 of the Botswana Constitution provides that “every person” in Botswana,
irrespective of race, place of origin, political opinion, colour, creed or sex, is entitled to
the fundamental rights and freedoms of the individual, including liberty, protection of the
law, freedom of expression and of assembly and association.33
32
1992 BLR at 154E.
“3. Fundamental rights and freedoms of the individual
Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to
say, the right, whatever his or her race, place of origin, political opinions, colour, creed or sex, but subject to
respect for the rights and freedoms of others and for the public interest to each and all of the following, namely(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his or her home and other property and from deprivation of property without
compensation,
the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and
freedoms subject to such limitations of that protection as are contained in those provisions, being limitations
designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the
rights and freedoms of others or the public interest.”
33
12
60. The Court of Appeal in the case of Attorney General v Dow has held that section 3 is an
autonomous section which confers the right to equal protection of the law on the
individual.34
61. The High Court in Kamanakao v Attorney General has held that “protection of law” was
more than protection by law enforcement but mandated that laws must treat all people
equally.35
62. The importance of the right to equal protection of the law is clear from its inclusion as a
substantive right in the International Covenant on Civil and Political Rights (ICCPR) and
African Charter on Human and Peoples’ Rights (ACHPR).
63. Article 26 of the International Covenant on Civil and Political Rights (ICCPR) provides
that “all persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any discrimination
and guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”36
63.1.
The Human Rights Committee (HRC) has held that -
“Article 26 does not merely duplicate the guarantee already provided for in article 2
but provides in itself an autonomous right. It prohibits discrimination in law or in fact
in any field regulated and protected by public authorities. Article 26 is therefore
concerned with the obligations imposed on States parties in regard to their legislation
and the application thereof. Thus, when legislation is adopted by a State party, it
must comply with the requirement of article 26 that its content should not be
discriminatory. In other words, the application of the principle of non-discrimination
contained in article 26 is not limited to those rights which are provided for in the
Covenant.”37
63.2.
In the case of Toonen v Australia38 the HRC held that reference to ‘sex’ in
article 26 of the ICCPR should be read to include ‘sexual orientation’.39
64. Article 3 of the African Charter on Human and Peoples’ Rights (ACHPR) provides that
every individual shall be equal before the law and shall be entitled to equal protection of
the law.
34
1992 BLR at 133.
(2002) AHRLR 35 (Bw HC 2001) at para 20. See also Attorney General v Dow 1992 BLR at 135H.
36
Article 16 of the ICCPR further provides that “everyone shall have the right to recognition everywhere as a
person before the law.”
37
General Comment 18 to the Human Rights Committee, HRI/GEN/1/Rev.9, 10 November 1989, at para 12.
38
Toonen v Australia ICCPR Communication 488/1992, CCPR/C/50/D/488/1992 (4 April 1994).
39
Id at para 8.7. In that case, the HRC held that the Tasmanian Criminal Codes, which criminalised consensual
adult same-sex sexual conduct is discriminatory. Id at para 8.2.
35
13
64.1.
The African Commission has interpreted article 3 of the ACHPR to mean that
no person or class of persons shall be denied the same protection of the laws which is
enjoyed by other persons or class of persons in like circumstances in their lives,
liberty, property, and in the pursuit of happiness. It simply means that similarly
situated persons must receive similar treatment under law.40
64.2.
The African Commission has further held in Zimbabwe Lawyers for Human
Rights & Associated Newspapers of Zimbabwe / Zimbabwe41 that article 3
“guarantees fair and just treatment of individuals within the legal system of a given
country.” It has further clarified that “the aim of [article 3] is to ensure equality of
treatment for individuals irrespective of nationality, sex, racial or ethnic origin,
political opinion, religion or belief, disability, age or sexual orientation”42 (our
emphasis).
65. The Inter-American Court of Human Rights concluded that –
“The principle of equality before the law, equal protection before the law and nondiscrimination belongs to jus cogens, because the whole legal structure of national and
international public order rests on it and it is a fundamental principle that permeates all
laws. Nowadays, no legal act that is in conflict with this fundamental principle is
acceptable. Discriminatory treatment of any person, owing to gender, race, colour,
language, religion or belief, political or other opinion, national, ethnic or social origin,
nationality, age, economic situation, property, civil status, birth or any other status is
unacceptable. This principle (equality and non-discrimination) forms part of general
international law.”43
66. The right to equal protection of the law in section 3 of the Botswana Constitution may be
limited on the grounds of public interest or to protect the rights and freedoms of others.
67. In other jurisdictions, courts have held that the right to equal protection of the law would
be violated where an organisation is denied registration simply because of moral
disapproval.
68. The Philippines Supreme Court has held that the refusal to register an organisation which
promotes the rights of lesbian, gay and bi-sexual persons as a party for the elections, is
contrary to the equal protection clause of the Philippines Constitution, noting that “our
40
Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in Africa,
Comm.294/04 (3 April 2009) at para 99 (quoting Brown v Board of Education of Topeka 347 US 483 (1954)).
41
Id.
42
Id.
43
Juridical condition and rights of undocumented migrants IACHR (Ser A) N18 (Advisory Opinion) OC-18/03
(17 September 2003), at para 101.
14
democracy precludes using the religious or moral views of one part of the community to
exclude from consideration the values of other members of the community.”44
68.1.
In that case, the court held that “equal protection of the law” means “that laws
of general application should apply with equal force to lesbian, gay, bisexual and
transgender persons, and they deserve to participate in the party-list system on the
same basis as other marginalised and under-represented sectors.”
68.2.
The court further held that “the asserted state interest here – that is, moral
disapproval of an unpopular minority – is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause.”
69. The respondents have not demonstrated why they used section 7(2)(a) of the Societies
Act to treat the applicants’ application for registration differently from that of other
organisations. The applicants have not referred to a legitimate public interest ground nor
explained how the registration of the applicants’ organisation would affect the rights and
freedoms of others. We accordingly submit that the respondents have not made out a case
for a legitimate limitation of the right to equal protection of the law.
THE REFUSAL TO REGISTER VIOLATES SECTION 7 OF CONSTITUTION
70. The applicants seek a declaration that the decision of the Minister of Labour and Home
Affairs to refuse the registration of LEGABIBO violates section 7 of the Constitution of
the Republic of Botswana in that its effect is to treat lesbians, gays and bisexuals in an
inhumane manner by refusing them to right to form associations for their benefit.
71. Section 7(1) of the Botswana Constitution provides that “no person shall be subjected to
torture or to inhuman or degrading punishment or other treatment”.
72. This protection is similar to that expressed by article 7 of the ICCPR and article 5 of the
Universal Declaration of Human Rights (UDHR), which both provide that “no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
72.1.
The Human Rights Committee, tasked with monitoring compliance with the
ICCPR, has asserted that the purpose of the right to be free from inhuman and
degrading treatment is to protect the mental and physical integrity and dignity of the
individual.45
44
45
Ang Ladlad LGBT Party v Commission on Elections, GR No 190582, 8 April 2010.
See General Comment 20 to the Human Rights Committee, 1992, at para 1.
15
73. Article 5 of the ACHPR also emphasises that “all forms of exploitation and degradation
of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment
and treatment shall be prohibited.”
73.1.
The African Commission emphasised in the case of Doebbler v Sudan that
article 5 of the Charter “prohibits not only cruel but also inhuman and degrading
treatment. This includes not only actions which cause serious physical or
psychological suffering, but which humiliate or force the individual against his will
or conscience.”46 The Commission reiterated that this section “is to be interpreted as
widely as possible to encompass the widest possible array of physical and mental
abuses.”47
74. The applicants submit that the right not to be treated in an inhuman and degrading manner
is closely related to the notion of liberty. Liberty presumes an autonomy of self that
includes freedom of thought, belief, expression and certain intimate conduct. 48 The
applicants argue that, at the heart of liberty is the right to define one’s concept of
existence, to define the issues which are important to a person and to form associations to
pursue common goals.
75. In the Botswana Industrial Court case of Diau v Botswana Building Society the court
considered the interaction of the right to liberty and the right to be free from inhuman and
degrading treatment. In that case, the applicant had been dismissed for failing to submit a
certified document of her HIV status to her employer. The court held that to terminate a
person’s contract of employment because the person refused to undergo an HIV/AIDS
test constituted a denial of the right to liberty whilst the conduct of the respondent
requiring the applicant to undergo compulsory HIV testing without offering counselling
constituted inhuman and degrading treatment. The court held that “to punish an
individual for refusing to agree to a violation of her privacy or bodily integrity is
demeaning, undignified, degrading and disrespectful to the intrinsic worth of being
human … The choices imposed upon the applicant in this case were most unfair.”49
76. Courts in comparative jurisdictions have held that discriminatory treatment against a
particular group is inhuman and degrading. For example, the Ugandan Supreme Court in
the case of Law Advocacy for Women in Uganda v Attorney General50 held that providing
differing criminal penalties for women convicted of adultery versus men violated the
constitutional prohibition against degrading treatment.
77. The applicants submit that the refusal to allow the applicants to form an association with
likeminded individuals amounts to an infringement of their right to make choices about
46
(2003) AHRLR 153 (ACHPR 2003) at para 36.
Id at para 37.
48
Lawrence v Texas 539 US 558 (2003).
49
2003 (2) BLR 409 (Bw IC).
50
Constitutional Petitions Nos. 13 /05 /& 05 /06 [2007] UGCC 1.
47
16
their lives. The denial of registration on purely discriminatory grounds amounts to
degrading treatment.
THE REFUSAL TO REGISTER VIOLATES SECTION 12 OF CONSTITUTION
78. The applicants argue that the decision of the Minister of Labour and Home Affairs to
refuse the registration of LEGABIBO violates section 12 of the Constitution of the
Republic of Botswana in that its effect is to deny the applicants the freedom to express
their ideas in an organised manner.
79. Section 12 of the Botswana Constitution provides for the protection of freedom of
expression:
“12. (1) Except with his or her own consent, no person shall be hindered in the
enjoyment of his or her freedom of expression, that is to say, freedom to hold
opinions without interference, freedom to receive ideas and information without
interference, freedom to communicate ideas and information without interference
(whether the communication be to the public generally or to any person or class of
persons) and freedom from interference with his or her correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in
question makes provision(a) that is reasonably required in the interests of defence, public safety, public
order, public morality or public health; …
and except so far as that provision or, as the case may be, the thing done under the
authority thereof is shown not to be reasonably justifiable in a democratic society.”
80. Section 12 is similar to article 19 of the International Covenant on Civil and Political
Rights, which concerns the right to freedom of opinion and expression:
“19. (1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public
health or morals.”
17
80.1.
The Human Rights Committee (HRC) in General Comment 34 elaborates on
the content of this right.51 The HRC notes that freedom of opinion and expression are
indispensable conditions for the full development of the person and are essential for
any society. The right constitutes the foundation stone for every free and democratic
society and is “a necessary condition for the realisation of the principles of
transparency and accountability that are, in turn, essential for the promotion and
protection of human rights”.52 Freedom of expression is integral to the enjoyment of
the right to freedom of association and extends to expression that may be regarded as
“deeply offensive”.53
81. Section 12 of the Botswana Constitution allows for limitations of the right provided such
restrictions are provided for in law and are reasonably justifiable in a democratic society.
Article 19 of the ICCPR allows for similar limitations of the right.
81.1.
In its deliberations on justifiable limitations to the right to freedom of
expression, the HRC has held that any restrictions on the exercise of freedom of
expression “may not put in jeopardy the right itself”54; “must be formulated with
sufficient precision to enable an individual to regulate his or her conduct
accordingly” and “may not confer unfettered discretion for the restrictions of
freedom of expression on those charged with its execution”.55
81.2.
Regarding any limitation of the right to freedom of expression on the ground
of public health or morals, the HRC has emphasised caution: “the concept of morals
derives from many social, philosophical and religious traditions; consequently,
limitations… for the purpose of protecting morals must be based on principles not
deriving exclusively from a single tradition” and “any such limitations must be
understood in the light of universality of human rights and the principle of nondiscrimination”.56
81.3.
The HRC has interpreted the limitations in article 19 of the ICCPR to mean
that restrictions of the right to freedom of expression must be for a necessary
legitimate purpose;57 must not be overbroad;58 and must conform to the principle of
proportionality. The requirement of proportionality includes that the restrictions must
be appropriate to achieve their protective function; must be the least intrusive
instrument amongst those which might achieve their protective function and must be
proportionate to the interest to be protected.59
51
General Comment 34 to the Human Rights Committee, CCPR/C/GC/34, 12 September 2011.
Id at para 3.
53
Id at para 11.
54
Id at para 12.
55
Id at para 25.
56
Id at para 32.
57
Id at para 33.
58
Id at para 34.
59
Id at para 34.
52
18
81.4.
The HRC has held in General Comment 34 that “the principle of
proportionality has to be respected not only in the law that frames the restrictions but
also by the administrative and judicial authorities in applying the law”. 60 Thus, when
an administrative decision restricts the right to freedom of expression, the decisionmaker “must demonstrate in specific and individualised fashion the precise nature of
the threat, and the necessity and proportionality of the specific action taken, in
particular by establishing a direct and immediate connection between the expression
and the threat”.61
81.5.
These principles were confirmed in the case of Fedotova v the Russian
Federation.62 In that case, a lesbian activist was fined under an administrative law
which specifically prohibits “public actions aimed at propaganda of homosexuality”.
Fedotova displayed posters that declared “homosexuality is normal” and “I am proud
of my homosexuality” near a secondary school building. She stated that her aim was
to promote tolerance towards homosexuality. Both parties admitted that the
conviction had amounted to a restriction of Fedotova’s right to freedom of
expression. The HRC held that the State failed to demonstrate why it was necessary
for one of the legitimate purposes of article 19(3) to restrict Fedotova’s right to
freedom of expression.
82. Article 9(2) of the ACHPR provides that “every individual shall have the right to express
and disseminate his opinions within the law”.
82.1.
The African Commission on Human and Peoples’ Rights, in the case of
Constitutional Rights Project and Others v Nigeria63, held that “freedom of
expression is a basic human right, vital to an individual’s personal development and
political consciousness, and participation in the conduct of the public affairs of his
country. Under the African Charter, this right comprises the right to receive
information and express opinions”.64
82.2.
In the case of Law Office of Ghazi Suleiman v Sudan (II)65 the African
Commission emphasised the right to freedom of expression as a cornerstone of
democracy. Citing the Inter-American Court of Human Rights, the African
Commission noted that “when an individual’s freedom of expression is unlawfully
restricted, it is not only the right of that individual that is being violated, but also the
right of all others to ‘receive’ information and ideas”.66
60
Id at para 34.
Id at para 35.
62
UN Human Rights Committee, Communication No. 1932/2010 (31 October 2012).
63
2000 AHRLR 227 (ACHPR).
64
Id at para 26.
65
2003 AHRLR 144 (ACHPR).
66
Id at para 50.
61
19
82.3.
The African Commission’s Declaration of Principles on Freedom of
Expression in Africa (2002) emphasises that freedom of expression is a fundamental
and inalienable human right and an indispensable component of democracy:
“Everyone shall have an equal opportunity to exercise the right to freedom of
expression and to access information without discrimination. No one shall be subject
to arbitrary interference with his or her freedom of expression… Freedom of
expression imposes an obligation on the authorities to take positive measures to
promote diversity.”67
83. The applicants submit that the refusal to register LEGABIBO constitutes a violation of
the right to freedom of expression in a context where the authorities should be protecting
the applicants’ right to form an association in order to be able to express their views
collectively on matters of importance to them.
84. The applicants further argue that reference to section 7(2)(a) of the Societies Act in order
to limit their right to freedom of expression is not reasonably justifiable in a democratic
society. The applicants contend that the respondents have failed to demonstrate a clear,
tangible and significant threat which would result from their registration which would
justify a limitation of their right to freedom of expression.
THE REFUSAL TO REGISTER VIOLATES SECTION 13 OF CONSTITUTION
85. The applicants argue that the decision of the Minister of Labour and Home Affairs to
refuse to register LEGABIBO violates section 13 of the Constitution of Botswana in that
its effect is to deny the applicants freedom of assembly and association by denying
lesbians, gays and bisexuals the ability to associate amongst themselves and/or with other
persons wishing to associate with them. The refusal to register LEGABIBO amounts to an
infringement of the applicants’ ability to form a legal entity in order to act collectively in
a field of mutual interest.
86. Section 13 of the Botswana Constitution provides for the protection of freedom of
assembly and association:
“13(1) Except with his or her own consent, no person shall be hindered in the
enjoyment of his or her freedom of assembly and association, that is to say, his or her
right to assemble freely and associate with other persons and in particular to form or
belong to trade unions or other associations for the protection of his or her interests.
67
African Commission “Resolution on the Adoption of the Declaration of Principles on Freedom of Expression
in Africa,” October 2002.
20
(2) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in
question makes provision(a) that is reasonably required in the interests of defence, public safety, public
order, public morality or public health;
(b) that is reasonably required for the purpose of protecting the rights or
freedoms of other persons;…
and except so far as that provision or, as the case may be, the thing done under the
authority thereof is shown not to be reasonably justifiable in a democratic society.”
87. In the case of Kanane v the State the Court of Appeal held that “there is nothing to
prevent them still so associating, subject to the law.”68 Thus, the Court of Appeal
recognised the possibility of an LGBT organisation legally registering as a society.
88. Article 10 of the ACHPR provides that every individual shall have the right to free
association provided that he abides by the law. Article 11 of the ACHPR provides that
“every individual shall have the right to assemble freely with others. The exercise of this
right shall be subject only to necessary restrictions provided for by law in particular those
enacted in the interest of national security, safety, health, ethics and rights and freedoms
of others.”
88.1.
The African Commission has stated that “competent authorities should not
enact provisions which would limit the exercise of this freedom” and “should not
override constitutional provisions or undermine fundamental rights guaranteed by the
constitution and international human rights standards.”69
89. The Botswana Constitution allows for a limitation of the right to freedom of association
on the basis of “public morality” provided that such limitation is “reasonably justifiable in
a democratic society.”
90. The Canadian Charter of Rights permits reasonable limitations of Charter rights “as can
be demonstrably justified in a free and democratic society”. In the case of R v Oakes70 it
was held that in order to meet this requirement a limitation of a Charter right had to be
directed to the achievement of an objective of sufficient importance to warrant the
limitation of the right in question, and that there had also to be proportionality between
the limitation and such objective. The court held that “the onus of proving that a limit on
a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a
free and democratic society rests upon the party seeking to uphold the limitation”.71
68
2003 (2) BLR 67 (CA).
Civil Liberties Organisation (in respect of Bar Association) v Nigeria 2000 AHRLR 186 (ACHPR), at para
15; Jawara v The Gambia 2000 AHRLR 107 (ACHPR); Law Office of Ghazi Suleiman v Sudan (II) 2003
AHRLR 144 (ACHPR).
70
R v Oakes [1986] 1 SCR 103.
71
Id at p 105D, 136J.
69
21
91. In a frequently-cited passage from R v Oakes, Dickson CJC described the components of
proportionality as follows:
“There are, in my view, three important components of a proportionality test. First, the
measures adopted must be carefully designed to achieve the objective in question. They
must not be arbitrary, unfair or based on irrational considerations. In short, they must be
rationally connected to the objective. Second, the means, even if rationally connected to
the objective in this first sense, should impair ‘as little as possible’ the right or freedom in
question . . . Third, there must be a proportionality between the effects of the measures
which are responsible for limiting the Charter right or freedom, and the objective which
has been identified as of ‘sufficient importance’.”72
European Court of Human Rights case law
92. Article 11 of the European Convention on Human Rights protects the right to freedom of
assembly and association subject to certain restrictions that are “in accordance with law”
and “necessary in a democratic society”. Article 11 contains similar limitations to those in
section 13 of the Botswana Constitution, including the protection of morals. It is
accordingly useful to take note of the comparative case law emanating from the European
Court of Human Rights (ECHR) on its interpretation of the right to freedom of
association.
93. The case of Baczkowski and Others v Poland73 is particularly relevant to the present
matter. The case concerned Polish authorities’ refusal to allow a march relating to
discrimination against minority groups including lesbian, gay and bisexual persons. The
court held that this refusal amounted to a violation of article 11.
94. In Baczkowski, the ECHR reflected on the importance of the right to freedom of assembly
and association in democracies:
“For pluralism is also built on genuine recognition of, and respect for, diversity and the
dynamics of cultural traditions, ethnic and cultural identities, religious beliefs and artistic,
literary and socio-economic ideas and concepts. The harmonious interaction of persons
and groups with varied identities is essential for achieving social cohesion. It is only
natural that, where a civil society functions in a healthy manner, the participation of
citizens in the democratic process is to a large extent achieved through belonging to
associations in which they may integrate with each other and pursue common objectives
collectively.”74
72
Id at 139C-F.
ECHR 1543/06 (3 May 2007).
74
Id at para 62. See also United Macedonian Organisation Ilinden and others v Bulgaria (no 2) ECHR
34960/04 (8 March 2012), at para 33(b); Zhechev v Bulgaria ECHR 57045/00 (21 September 2007).
73
22
“Genuine and effective respect for freedom of association and assembly cannot be
reduced to a mere duty on the part of the State not to interfere; a purely negative
conception would not be compatible with the purpose of article 11 nor with that of the
Convention in general. There may thus be positive obligations to secure effective
enjoyment of these freedoms. This obligation is of particular importance for persons
holding unpopular views or belonging to minorities, because they are more vulnerable to
victimisation.”75
95. The ECHR has repeatedly held that a refusal by the domestic authorities to grant legal
entity status to an association of individuals amounts to an interference with the
applicants’ exercise of their right to freedom of association.76
96. The ECHR in Baczkowski further held that it is not sufficient that the restriction of the
right to freedom of association is prescribed by law; by contrast, the quality of the law
should also be interrogated. Thus, the law must not give officials unfettered discretion to
decide whether to register, and the law must “indicate with sufficient clarity the scope of
any such discretion and the manner of its exercise.”77
97. The ECHR has held that “the State’s power to protect its institutions and citizens from
associations that might jeopardise them must be used sparingly, as exceptions to the rule
of freedom of association are to be construed strictly and only convincing and compelling
reasons can justify restrictions on that freedom”.78
98. The test used by the ECHR to determine whether a limitation of the right to association
was justified includes consideration of the following:79 1) Was the violation prescribed by
law? 2) Did the violation pursue a legitimate government aim? 3) Was the violation
necessary in a democratic society? - I.e. was there a pressing social need for the violation
and was the measure proportional?
75
ECHR 1543/06 (3 May 2007), at para 64. See also Ournio Toxo and others v Greece ECHR 74989/01 (20
October 2005), at para 36-37; Tsonev v Bulgaria ECHR 45963/99 (13 April 2006).
76
Koretskyy and others v Ukraine ECHR 40269/02 (3 April 2008), at paras 39-42. The court held that the
“ability to form a legal entity in order to act collectively in a field of mutual interest is one of the most important
aspects of the right to freedom of association, without which that right would be deprived of any meaning”. Id at
para 38.
77
Baczkowski ECHR 1543/06, at para 47.
78
Koretskyy ECHR 40269/02, at para 51; Zhechev, ECHR 57045/00, at para 43; Association of Citizens Radko
& Paunkovski v Former Yuguslav Republic of Macedonia, ECHR 74651/01 (15 January 2009). See also Tsonev
v Bulgaria ECHR 45963/99, at para 46 (holding that “exceptions to freedom of association must be narrowly
interpreted. Their enumeration therefor is strictly exhaustive and their definition is necessarily restrictive”).
79
Koretskyy ECHR, at paras 39-42; Gorzelik and others v Poland ECHR 44158/98 (17 February 2004).
23
99. The ECHR has interpreted the term “necessary in a democratic society” to imply the
existence of a “pressing social need”, which would include questioning whether there was
an “imminent risk to society”. The court must also consider whether:80
1)
2)
3)
4)
In light of the case as a whole, it was “proportionate to the legitimate aim pursued”;
The reasons adduced by the national authorities to justify it are “relevant and
sufficient”;
The authorities applied standards which were in conformity with the principles in
article 11 of the European Convention; and
If the authorities based their decisions on an acceptable assessment of the relevant
facts.
100. The ECHR has held that the rights to freedom of expression and association are
closely linked and authorities cannot refuse to register an association because it does not
like the statements that it made or is likely to make.81
101. The ECHR in United Macedonian Organisation Ilinden and Others v Bulgaria (No.
2) held that seemingly shocking or radical political and social ideas were protected
through the exercise of the right of association.82
102. In Zhechev v Bulgaria, the ECHR held that an organisation may campaign for a
change in the legal and constitutional structures of the State if the means used to that end
are in every respect legal and democratic and if the change proposed is itself compatible
with fundamental democratic principles.83 In Zhechev, the court held that the aims of the
association were not a sufficient ground on which to refuse its registration – there was no
indication that the association would use violence or undemocratic means to achieve its
aims and in any event the organisation didn’t have much public influence.84
103. The ECHR has also considered a case in which Russian authorities had banned a gay
pride march. In Alekseyev v Russia85 the ECHR noted that the intention of the march was
to promote human rights and freedoms and to call for tolerance towards sexual minorities.
There was no suggestion that participants would exhibit nudity, engage in sexually
provocative behaviour or criticise public morals or religious views. The court held that “There is no scientific evidence or sociological data at the Court’s disposal suggesting
that the mere mention of homosexuality, or open public debate about sexual minorities’
social status, would adversely affect children or ‘vulnerable adults’. On the contrary, it is
only through fair and public debate that society may address such complex issues as the
80
Partidul Comunistilor (Nepeceristi) and Ungureanu v Romania ECHR 46626/99 (3 February 2005); Tsonev
ECHR 45963/99, at para 52.
81
Zhechev ECHR 57045/00.
82
ECHR 34960/04, ECHR (18 October 2011), at para 33.
83
Zhechev ECHR 57045/00, at paras 47-48.
84
Id at paras 49-50.
85
ECHR 4916/07; 25924/08; 14599/09 (21 October 2010).
24
one raised in the present case. Such debate, backed up by academic research, would
benefit social cohesion by ensuring that representatives of all views are heard, including
the individuals concerned. It would also clarify some common points of confusion, such
as whether a person may be educated or enticed into or out of homosexuality, or opt into
or out of it voluntarily. This was exactly the kind of debate that the applicant in the
present case attempted to launch, and it could not be replaced by the officials
spontaneously expressing uniformed views which they considered popular. In the
circumstances of the present case the Court cannot but conclude that the authorities’
decision to ban the events in question was not based on an acceptable assessment of the
relevant facts.”86
The Court concluded that the ban amounted to a violation of the right under article 11.
104. In the above case, the ECHR referred to its previous case law on the meaning of a
democratic society:
“Referring to the hallmarks of a ‘democratic society’, the Court has attached particular
importance to pluralism, tolerance and broadmindedness. In that context, it has held that
although individual interests must on occasion be subordinated to those of a group,
democracy does not simply mean that the views of the majority must always prevail: a
balance must be achieved which ensures the fair treatment of minorities and avoids any
abuse of a dominant position.”87
Comparative case law from other jurisdictions
105. The applicants argue that LEGABIBO’s right to conduct advocacy is protected under
the right to freedom of association and that the denial of registration is too sweeping a
measure to address any concerns the State might have with the organisation.
106. In Gay Alliance of Students v Matthews88 a U.S. appellate court considered the extent
to which the Virginia Commonwealth University’s denial of registration to a lesbian, gay,
bisexual and transgender student group violated their right to freedom of association.
106.1.
In that case, the court made a distinction between advocacy, which is entitled
to full protection, and action, which might not be. Although same-sex sexual activity
was illegal in the State at the time, the court held that the Alliance’s purpose involved
only advocacy, which was protected by the right to freedom of association. The
court noted that “Virginia law does not make it a crime to be a homosexual”.
86
Id at para 86.
Id at para 70.
88
544 F.2d 162 (4th Cir. 1976).
87
25
107. The Argentina Supreme Court in Asociacion Lucha por la Identidad TravestiTransexual v Inspeccion General de Justicia89 considered the denial of registration to an
association of transgender individuals.
107.1.
The court noted that the right to freedom of association was fundamental for
the protection of the right to freedom of expression and human dignity. Limitations
on this right risked isolating certain social groups, especially those that had
difficulties in being effectively integrated in society. Only the promotion of ideas that
disregard or threaten the protection of people’s dignity could justify a limitation of
the right to freedom of association.
107.2.
The court held that the principles of pluralism and tolerance implied that
freedom of association should always be considered useful because it increased
respect for others’ ideas, citizens’ participation in the democratic system and social
cohesion. The court held that it was wrong to understand “common good” to mean
what the majority considered good and it was impossible to assert that an association
which aimed to deal with prejudice was not pursuing the common good.
108. In the Philippines Supreme Court case of Ang Ladlad LGBT Party v Commission on
Elections90 the court considered the refusal to register a lesbian, gay, bisexual and
transgender organisation as a party for the elections.
108.1.
The court noted that the respondent had failed to explain what societal ills are
sought to be prevented or why it is of the view that admission of the organisation as a
party would be so harmful as to irreparably damage the moral fabric of society –
“bare invocation of morality will not remove an issue from our scrutiny… As such,
we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list
system.”
109. A Turkish court in The People v Siyah Pembe Ucgen Izmir Association (“Black Pink
Triangle”)91 considered a lesbian, gay, bisexual and transgender organisation that had
been refused registration. The Turkish Constitution provided for similar limitations to the
freedom of association as those provided for in the Botswana Constitution.
109.1.
In its judgment, the court referred to the rights to freedom of association,
freedom from discrimination and equality before the law concurrently. The court
held that it was not possible to characterise as immoral the fact that someone had a
particular ‘involuntary’ sexual orientation; or the use of words such as lesbian, gay,
bisexual or transsexual; nor was being lesbian, gay, bisexual or transsexual
prohibited under national law. Therefore, the use of such terms in the organisation’s
89
21 November 2006.
GR No 190582 (8 April 2010).
91
Sixth Court of First Instance Izmir (30 April 2010).
90
26
constitution could not be seen as immoral or contrary to law. The court held that
lesbian, gay, bisexual and transgender individuals had the same right to associate as
that enjoyed by all others in society.
110. The applicants argue that the refusal to register LEGABIBO amount to a violation of
their right to freedom of association.
THE REFUSAL TO REGISTER VIOLATES SECTION 15 OF CONSTITUTION
111. The applicants seek a declaration that the decision of the Minister of Labour and
Home Affairs to refuse the registration of LEGABIBO violates section 15 of the
Constitution of the Republic of Botswana in that its effect is to discriminate against the
applicants on the basis of their actual or perceived sexual orientation.
112. Section 15 of the Botswana Constitution provides for the right to be protected from
discrimination. Section 15(2) provides that no person shall be treated in a discriminatory
manner by any person acting by virtue of any written law or in the performance of the
functions of any public office or any public authority. Section 15(3) provides that the
expression “discriminatory” means affording different treatment to different persons,
attributable wholly or mainly to their respective descriptions by race, tribe, place of
origin, political opinions, colour, creed or sex whereby persons of one such description
are subjected to disabilities or restrictions to which persons of another such description
are not made subject or are accorded privileges or advantages which are not accorded to
persons of another such description.
113. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR)
provides that “each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth
or other status.”
113.1.
The Human Rights Committee (HRC) in its General Comment No 18 on nondiscrimination, noted that –
“While these conventions deal only with cases of discrimination on specific grounds,
the Committee believes that the term ‘discrimination’ as used in the Covenant should
be understood to imply any distinction, exclusion, restriction or preference which is
based on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status, and which has the
27
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by
all persons, on an equal footing, of all rights and freedoms.”92
113.2.
In Toonen v Australia93 the HRC in 1994 held that reference to ‘sex’ in articles
2 and 26 of the ICCPR is to be taken as including sexual orientation.94
114. Article 2 of the ACHPR provides that “every individual shall be entitled to the
enjoyment of the rights and freedoms recognised and guaranteed in the present Charter,
without distinction of any kind such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national and social origin, fortune, birth or other status.”
114.1.
In determining whether impermissible discrimination has taken place under
the Charter, the African Commission stated in the case of Kenneth Good v Republic
of Botswana Rapporteur95 that a violation of the principle of non-discrimination
arises where:
a)
b)
c)
Equal cases are treated differently;
A difference in treatment does not have an objective and reasonable justification;
and
If there is no proportionality between the aim sought and the means employed.
114.2.
In Legal Resources Foundation v Zambia96 the African Commission found
that Zambian constitutional provisions that rendered persons not of Zambian descent
ineligible for presidential office violated article 2. In so doing, the Commission
explained:
“Article 2 of the Charter abjures discrimination on the basis of any of the grounds set
out, among them ‘language…national or social origin…birth or other status…’. The
right to equality is very important. It means that citizens should expect to be treated
fairly and justly within the legal system and be assured of equal treatment before the
law and equal enjoyment of the rights available to all other citizens. The right to
equality is important for a second reason. Equality or the lack of it affects the capacity
of one to enjoy many other rights.”97
115. The applicants submit that the decision to reject their application for registration
amounted to a differentiation between persons of homosexual orientation and persons of
heterosexual orientation who wished to form an association. Such a differentiation does
92
General Comment 18 to the Human Rights Committee, HRI/GEN/1/Rev.9, 10 November 1989, at para 7.
Toonen v Australia ICCPR Communication 488/1992, CCPR/C/50/D/488/1992 (4 April 1994).
94
Id. The HRC observed that the Tasmanian Criminal Codes, which criminalised consensual adult same-sex
sexual conduct, was discriminatory. Id.
95
ACHPR 313/05 (2010), at para 219.
96
(2001) AHRLR 84 (ACHPR).
97
Id at para 63.
93
28
not have a reasonable justification and amounts to discrimination contrary to section 15 of
the Constitution.
THE REFUSAL TO REGISTER VIOLATES THE RIGHT TO DIGNITY
116. The applicants assert that their right to dignity has been violated by the refusal to
register LEGABIBO.
117. Although the right to dignity is not explicitly recognised in the Botswana Constitution
it has been recognised as a fundamental right which underpins the other rights in the
Constitution.
118. Innumerable courts around the world have recognised, invoked, interpreted and
applied the right to dignity. Legal scholar Erin Daly has observed that courts’ heavy
reliance on dignity stems from the reality that “the law has always been about promoting
human dignity. Law establishes order and secures freedoms, both of which contribute to
the enhancement of human dignity.”98
119.
Erin Daly, in her seminal book on the right to dignity further asserts that -
“Courts are choosing to invoke human dignity in order to say something about deeper
constitutional values and about the evolving nature of society. They are using the right to
dignity to describe what human beings are entitled to just by virtue of being human… The
right to dignity is how we describe what legal claims people can assert to insist that their
humanity be recognised.”99
120. The South African Constitutional Court has held that dignity “is not the right to be left
alone, but the right to be acknowledged as equals and to be embraced with dignity by the
law”.100
121. Human dignity also has aspirational significance. “The state must not establish rigid
social stratification that would consign individuals to a particular station in life, with no
hope for advancement for themselves and their children.”101
122. The right to dignity has been recognised in regional law. Article 5 of the ACHPR
provides that “every individual shall have the right to the respect of the dignity inherent in
a human being and to the recognition of his legal status.”
98
Erin Daly Dignity Rights: Courts, Constitutions and the Worth of the Human Person (2012) 3.
Id 7.
100
Minister of Home Affairs v Fourie and another, 2006 (1) SA 524 (CC), para 78.
101
Erin Daly Dignity Rights: Courts, Constitutions and the Worth of the Human Person (2012) 128.
99
29
122.1.
In Purohit and Another v The Gambia, the African Commission held that
“human dignity is an inherent basic right to which all human beings, regardless of
their mental capabilities or disabilities as the case may be, are entitled to without
discrimination. It is therefore an inherent right which every human being is obliged
to respect by all means possible and on the other hand it confers a duty on every
human being to respect this right.”102 The African Commission noted that “personal
suffering and indignity can take many forms, and will depend on the particular
circumstances” of each case.103
123. The Botswana case of Diau v Botswana Building Society104 illustrates the
interconnectedness of the right to dignity with all other rights:
“The right to dignity requires us to respect that an individual is the master of his own
body [and] destiny and that he is free to resist any potential violation to his privacy or
bodily integrity. To punish an individual for refusing to agree to a violation of privacy
or bodily integrity is demeaning, undignified, degrading and disrespectful to the
intrinsic worth of being human. Punishing the applicant for refusing an invasion of
her right to privacy and bodily integrity is inconsistent with human dignity. This is
particularly so in the context of HIV/AIDS where even the remotest suspicion of
having HIV/AIDS can lead to intense prejudice, ostracisation and stigmatisation.”
124. The Argentina Supreme Court of Justice considered the denial of registration to an
association of transgender individuals.105 The court noted that the right to freedom of
association was fundamental for the protection of the right to freedom of expression and
human dignity. Limitations on this right entailed the risk of isolating certain social
groups, especially those that had difficulties in being effectively integrated in society.
125. The applicants argue that the court should consider their right to be recognised as
equal human beings who should be afforded an opportunity to associate with each other.
This right to be respected as a person with inherent dignity underlies all the other rights in
the Botswana Constitution.
CONCLUSION
126.
The applicants accordingly request an order in the following terms:
102
(2003) AHRLR 96 (ACHPR), para 57.
Id at para 58.
104
2003 2 BLR 409 (Bw IC).
105
Asociacion Lucha por la Identidad Travesti-Transexual v Inspeccion General de Justicia, 21 November
2006.
103
30
126.1.
Declaring the decision of the Minister of Labour and Home Affairs to refuse
registration of LEGABIBO in contravention of sections 3, 7, 12, 13 and 15 of the
Botswana Constitution;
126.2.
Setting aside the decision of the Minister of Labour and Home Affairs; and
126.3.
Declaring that the applicants are entitled to register LEGABIBO as a society.
LIST OF AUTHORITIES
Domestic Cases
Air Cooling Maintenance Pty Ltd v Attorney General and others 2010 (1) BLR 527 (HC).
Attorney General and another v Kgalagadi Resources Development Company (Pty) Ltd 1995
BLR 234 CA.
Attorney General v Dow 1992 BLR 119.
Autlwetse v Botswana Democratic Party and others 2004 (1) BLR 230 (HC).
Botswana Association of Tribal Land Authorities v Attorney General 2007 (3) BLR 93 (HC).
Diau v Botswana Building Society 2003 (2) BLR 409 (Bw IC).
Home Defenders Sporting Club v Botswana Football Association 2005 (1) BLR 400 (HC).
Kamanakao v Attorney General 2002 (1) BLR 110 (HC).
Kenneth Good v Republic of Botswana Rapporteur ACHPR 313/05 (2010).
Makuto v The State 2000 (2) BLR 130 (CA).
Masitara Investments Pty Ltd v Botswana Unified Revenue Services 2009 (1) BLR 321 (HC).
Medical Rescue International Botswana Ltd v Attorney General and others 2006 (1) BLR
516 (CA).
Mokgare v Chairman, Public Service Commission and another 2007 (2) BLR 90 (HC).
Petrus v The State 1984 BLR 14.
31
Ralekgobo v Matome and another 2010 (2) BLR 513 (HC).
Raphethela v Attorney General 2003 (1) BLR 591.
Sesana and others v Attorney General (2006) AHRLR 183 (Bw HC).
Foreign and International Cases
Alekseyev v Russia ECHR 4916/07; 25924/08; 14599/09 (21 October 2010).
Ang Ladlad LGBT Party v Commission on Elections, GR No 190582 (8 April 2010).
Asociacion Lucha por la Identidad Travesti-Transexual v Inspeccion General de Justicia,
Supreme Court of Justice of Argentina, 21 November 2006
Associated Provincial Picture Houses Ltd v Wednesbury Corporation, 1948 1 KB 223.
Association of Citizens Radko & Paunkovski v Former Yuguslav Republic of Macedonia,
ECHR 74651/01 (15 January 2009).
Baczkowski and Others v Poland ECHR 1543/06 (3 May 2007).
Chief Constable of the North Wales Police v Evans 1982 (3) All ER 141 (HL).
Civil Liberties Organisation (in respect of Bar Association) v Nigeria 2000 AHRLR 186
(ACHPR).
Constitutional Rights Project and Others v Nigeria 2000 AHRLR 227 (ACHPR).
Council of Civil Service Unions and Others v Minister for the Civil Service 1984 (3) All ER
935.
Doebbler v Sudan (2003) AHRLR 153 (ACHPR).
Edwards v Society of Graphical and Allied Trades 1971 Ch 354.
Estrada v Escritor 455 Phil. 411 (2003), (A.M. No. P-02-1651 August 4, 2003 & June 22,
2006).
Fedotova v the Russian Federation UN Human Rights Committee, Communication No.
1932/2010 (31 October 2012).
Gay Alliance of Students v Matthews, 544 F.2d 162 (4th Cir. 1976).
32
Gorzelik and others v Poland ECHR 44158/98 (17 February 2004).
Jawara v The Gambia 2000 AHRLR 107 (ACHPR).
Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111.
Johannesburg Stock Exchange and another v Witwatersrand Nigel Ltd and another 1988 (3)
SA 132 (A).
Juridical condition and rights of undocumented migrants IACHR (Ser A) N18 (Advisory
Opinion) OC-18/03 (17 September 2003).
Koretskyy and others v Ukraine ECHR 40269/02 (3 April 2008).
Law Advocacy for Women in Uganda v Attorney General 2007 UGCC 1.
Law Office of Ghazi Suleiman v Sudan (II) 2003 AHRLR 144 (ACHPR)
Lawrence v Texas 539 US 558 (2003).
Legal Resources Foundation v Zambia (2001) AHRLR 84 (ACHPR).
Minister of Home Affairs v Fourie and Another, 2006 (1) SA 524 (CC).
Moscow Branch of the Salvation Army v Russia ECHR 72881/01 (5 October 2006).
Ournio Toxo and others v Greece ECHR 74989/01 (20 October 2005).
Partidul Comunistilor (Nepeceristi) and Ungureanu v Romania ECHR 46626/99 (3 February
2005).
Pennington v Friedgood and Others 2002 (1) SA 251 (C).
Pharmaceutical Manufacturers Association of SA and another: In re Ex Parte President of
RSA 2000 (2) SA 674 (CC).
Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR).
R v Oakes [1986] 1 SCR 103.
Stankov and the United Macedonia Organisation of Ilinden v Bulgaria ECHR 29221/95;
29225/95 (2 October 2001).
The People v Siyah Pembe Ucgen Izmir Association (“Black Pink Triangle”) Sixth Court of
First Instance Izmir (30 April 2010).
33
Toonen v Australia ICCPR Communication 488/1992, CCPR/C/50/D/488/1992 (4 April
1994).
Tsonev v Bulgaria ECHR 45963/99 (13 April 2006).
United Macedonian Organisation Ilinden and others v Bulgaria (no 2) ECHR 34960/04 (8
March 2012).
Zhechev v Bulgaria ECHR 57045/00 (21 September 2007).
Zimbabwe Lawyers for Human Rights and Institute for Human Rights and Development in
Africa, Comm.294/04 (3 April 2009).
Domestic Constitutions, Statutes and Policies
Botswana Constitution, 1966.
Botswana Employment Law, 1982
Botswana National Strategic Framework for HIV & AIDS, 2010-2016, 2009.
Botswana Societies Act, 1983.
International and Regional Treaties and Documents
African Charter on Human and Peoples Rights (Banjul Charter), 1986.
African Commission on Human and Peoples’ Rights, “Resolution on the Adoption of the
Declaration of Principles on Freedom of Expression in Africa,” October 2002.
General Comment 18 to the Human Rights Committee, HRI/GEN/1/Rev.9, 10 November
1989.
General Comment 20 to the Human Rights Committee, 1992.
General Comment 34 to the Human Rights Committee, CCPR/C/GC/34, 12 September 2011.
International Covenant on Civil and Political Rights, 1976.
Literature
L Baxter Administrative Law (1984).
Erin Daly Dignity Rights: Courts, Constitutions and the Worth of the Human Person (2012).
34
S Stanley et al De Smith, Woolf & Jowell, Judicial Review of Administrative Action (5th ed
1995).
W Wade & C Forsyth Administrative Law (7th ed 1994).
35