16 Mar 2016

The Court of Appeal sitting in Gaborone yesterday unanimously upheld High Court judgement which ruled that members of the advocacy group Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) can formally register their organisation in accordance with the Botswana Societies Act.

The government had appealed Gaborone High Court, Justice Terrence Rannowane’s decision which was delivered on November 2014.

Judge Rannowane’s judgement was issued in response to a petition filed by LEGABIBO after the Registrar of Societies rejected the group’s request to register in 2012.

He had ruled that freedoms of association, assembly and expression are important values of society, and that the enjoyment of such rights can only be limited where such limitation is reasonably justifiable in a democracy, noting that the objects of LEGABIBO as reflected in the society’s constitution are all ex facie lawful.

Justice Rannowane had also noted that they include carrying out political lobbying for equal rights and decriminalisation of same sex relationships.

Members of LEGABIBO had submitted application for registration on February 16, 2012; but their application was turned down on the basis that the application would violate section 7(a) of the Botswana Societies Act, which allows the denial of an application for the registration if it appears 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.  

In their submission the five-member bench headed by Judge President Ian Kirby agreed with the lower court that the respondents wanted to register a society for the protection of their interest, so that they could freely assemble and associate with each other and with others who support their aims.

Justice Kirby said it is clear that the minister’s decision interferes in the most fundamental way with the respondents’ right to form an association to protect and promote their interest.
He said his concern was that registration might lead to or encourage the members of LEGABIBO to break the law. He therefore said the refusal was irrational.

The Court of Appeal consequently dismissed the appeal with costs and the decision of the minister (and of the director/registrar) refusing the registration of LEGABIBO as a society was set aside. The Registrar of Societies was also ordered to take such steps as may be necessary to register LEGABIBO as a society in terms of the Societies Act Cap 18:01. Ends