SEEING BEYOND SEXUAL ORIENTATION: A clerical voice against discriminative religious discourse against homosexuals.

By: Rev. Maatla Sarah David

Abstract

Human sexuality is a field that is full of complexities especially that the highest percentages of human beings are oblivious of the existence of diverse sexualities within the human race. Within the web of human sexuality, though not limited to the following, we have homosexuality, heterosexuality, bisexuality, bestiality, trans- sexuality, Trans-serials, transgendered, pan romantics, biro antics, etc. However, within these, only heterosexuals are free to explore and exercise their sexuality without discrimination.   This could be attributable to the fact that the subject of sexuality is shadowed with secrecy, societal constructs and/or boundaries.  In effect, human relations are continually unsettled by misinformed discriminations, which in many cases are perpetuated by religious dictations rooting from ideologies, culture and stereotypes.  Unfortunately, to my observation, it appears that Christianity by intent or default, fuels discrimination against sexual minorities through its proclamations and monopolized ethical standards. Consequently, this kind of discrimination tends to destabilize the core and essence of coexistence, human equality, and dignity.   This qualifies discrimination to be one of the main global challenges to human stability.  Therefore, advocacy must reduce the theoretical approach against discrimination to the praxis; otherwise humanity will relegate itself to sub-humanity.

Introduction

Sexual minorities as a community within communities have been pushed to the margins of different societies.  They are considered as the ‘lepers’ of our time who have been ‘privileged’ to dwell amongst the ‘straight and pure’ but, with a huge price to pay for supposedly bringing a decline to morality and societal norms.   This assumption is legitimized by the religious assertion that homosexuality is a taint to God-human relations, an impurity that once contributed to the mass obliteration of nations such as Sodom and Gomorrah. Shockingly, the same societies that seek to preserve morality use immorality to address immorality.  As a point of interest, it appears that a seemingly immoral act of one threatens communality, yet a negative communal reaction to the act is not regarded as an element that weakens relationality.  I do not intend to promote homosexuality, for it is not my call.  I seek to highlight through this article, that, sexual orientation does not disqualify sexual minorities from being human.  They are part of creation, as such; they bear the imprint of God the creator hence the necessity to reverence the radiance of God on every human being.  Moreover, the seemingly privilege to belong to the heterosexual group neither provides immunity to sin nor elevates the state of humanness above that of homosexuals. All human beings are born equal in dignity and essence, and, sin goes beyond sexual activity.  My discussion will briefly cover  the subject of sexual orientation, The Bible and Homosexuality, inclusivity of Christ’s mission, Imago Dei, the ethical concept of Botho, Love, and Peace.

Human Sexuality and Sexual Orientation

Human sexuality refers to the blend of emotions, passion, behaviors, and physical involvements of human beings related to their sexual nature.  Therefore human beings are sexual beings because sexuality is intrinsic.  Tallied to sexuality is an element of sexual orientation which is genetically based by enfluence of hormones. So, an individual does not play a role in determining their sexual orientation or creation, it is a biological matter.  For example, if a female is given testosterone at a critical point during their development their exterior will be portrayed as male together with functionality.  Equally, if males are supplied with androgen blocker they develop female exterior.  Many of our people are born with both male and female genitals hence being forced to undergo a crisis of choice and identity which does not always correspond with societal expectations.  Some sociologists argue that there is nothing intrinsic about orientation because it is learnt, it is a lifestyle.  But many of our children display signs of homosexuality at very tender ages.  Orientation is not something we can evacuate out of a person, it is innate.  Just as it is injustice to turn a heterosexual into a homosexual, it must also be equally an injustice to attempt to turn a homosexual into a heterosexual.  In any case, we are human beings and being human goes beyond sexual orientation.  We all have a purpose to fulfill in the world besides exercising our sexuality.  So it is unreasonable to think that the lives of homosexuals begins and ends with sex, nothing less nothing more.  The apostle Paul wrote that we are predestined according to the plan of him who works out everything in conformity with the purpose of his will. We are all created by God, for God.  God trusted us to live together in harmony with our differences for the fulfillment of our purpose in the divine plan of God, as individuals and as the race.

The Bible and Homosexuality

Sexual behavior in the Old Testament was not taken for granted rather it was regulated because of its common alliance to paganism. It was also associated with societies synonymous with moral decadence and disobedience to the law.  Homosexuality was not only regarded as socially unacceptable but also as sinful.  With reference to Leviticus 18:22 “No man is to have sexual relations with another man; God hates that”, and, “They were enjoying themselves when all of a sudden some sexual perverts from the town surrounded the house and started beating on the door.  They said to the old man, “bring out that man that came with you, we want to have sex with him” (Judges 19:22). This is evidence of people involved in homosexuality; it was outlawed. The Torah has clear instruction against males wearing clothes tailored for women vise- versa, and considers it a shameful deed.

The society decides what is acceptable and what is not acceptable based on their level of knowledge and understanding, which then becomes a way of life. The culture then becomes a source of sacred scripture and the law. So it is for this reason that hermeneutic of suspicion ought to be applied because of impositions of preconceived human ideologies rooting from culture, evident in scripture. Everything is good in itself.  Sex is good in itself that is why God gave us the privilege to be sexual beings; but as in every act, it becomes problematic if it is abused. It is unethical for heterosexuals to engage in orgies, sex parties and equally unethical for a homosexual to have wild sexual desires. Many of the codes we use to legitimize oppression of homosexuals are cultural, normally rooting from hate or failure to embrace difference.  Hatred is not of God, God is wider that what we think and therefore we are not to be fazed by diversity in forms of creation nor be angered by the same.

Homosexuality has always existed in all cultures even in Botswana, we know that traditional doctors were normally in the company of assistants known as ‘Bo’Ra-kgetsi’ and homosexuality was acceptable for this kind of arrangement. The Roman power and intellect considered homosexuality as a higher order of sexual pleasure in the hierarchy of intimacy because of patriarchal mentality.  Homosexuality was the order of the day especially in medieval monasteries.  In some cultures like the Greek the true form of love was between a man and his youth.  In the late middle ages, homosexuality was either ignored or accepted.  This explains why Jesus and apostles did not dwell on the subject and why gay marriages persisted in Eastern Europe in the twentieth century.

Pauline epistles record the apostles Missional engagements with the people in Corinth. Corinth was a cosmopolitan city, a seaport and a major trade center-the most important city in Achaia. The economy was flourishing at the time and that brought a decline to morality which also manifested as sexual immorality of many forms. Homosexuality became the scapegoat. Therefore, there was need for Paul to respond to the problem because theology becomes relevant if it is contextualized.  Paul emphasized the sufficiency of grace through Christ, by faith.  The grace covers all human sins and vindicates us from the imprisonment of the law.  The grace covers all human beings despite their orientation to the inclusion of homosexuals.  Paul stated that God does not show favoritism.  If homosexuality is a matter of the law, and righteousness can only be gained through the law, then Christ died for nothing.  The baptism, which is not limited to the heterosexuals, clothes humanity with Christ, so I maintain that the grace is sufficient for all of us, by faith.

The Inclusivity of Christ’s Mission

Jesus demonstrated love in its purest form.  He embraced all people especially those in the margins, which is why he was born and lived amongst the expendables.  I am convicted that he could have taken the side of homosexuals if they were undergoing oppression at the time because Christianity stands for liberation.  Christianity is not a court of morality, it is responsive to injustice.  When there is injustice, it is not our duty to consider some technicalities; we take the side of the oppressed because we stand for love and peace.  Desmond Tutu emphasized the need to always take the side of the oppressed if we want justice and peace, he wrote, “if you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say you are neutral, the mouse will not appreciate your neutrality”.

The mission of Jesus dissolved alienations and broke down walls of hostility, and, crossed boundaries between individuals and groups.  Christians have the task of continuity of the mission of Jesus, the kind that resonates with his teachings and lifestyle. Theology concerns itself with relationships so theology of the vulnerable must be developed to give meaning to the Christian faith, inclusive of being merciful, compassionate and sensitive to the challenges of the marginalized. Salvation is not only limited to the soul, it is also about bringing healing, empowerment and restoration of dignity.

Imago Dei and Human Dignity

As the Psalmist says, the earth belongs to God and its fullness thereof.  God created man in his image and likeness, male and female he created (Genesis1:27).  Human beings are made in the image of God; therefore the image has to be revered.  This is done by protecting dignity of all men and embracing all that are created in the image of God.  Dignity qualifies human-hood; loss of dignity relegates the state of being human to something less human.  Therefore, dignity of fellow men has to be protected at all cost.  A human being is human because he/she is part of a network of dignified and stable social relationships.  Where wholeness is tempered with, there can be no peace between humanity and God.  This explains what Jesus meant in the statement, ‘what you do unto them you do it unto me’.  If we oppress homosexuals, we oppress Jesus and disrespect the image; after all, they are the creation of God and belong to God. It pleased God to create them and have them dwell amongst us.  To a certain extent it tests the measure of love that we Christian claim to have and boast about.  Yet we continually reject them and openly display the rejection.

The Ethical Concept of Botho and Authentic Love

Botho is a Sotho-Tswana word that refers to authentic humanness or the qualifying factor of being human. Basically this has to do with attributes expected of human beings which are higher than the physical aspect of a humanness.  It is that which makes one worthy to be called a human being. It is a line of distinction between human beings and animals.  Authentic humanness is found in the ability to reason with dignity and cognizance of the fact that we are interconnected, what affects one of us, affects all of us.  When we recognize our shared humanity, then peace is possible.  In the African context, sin is failure to relate well; wholeness is holiness.  Again, “Botho ke Bomodimo”.  ‘Love the Lord your God with all your heart, and with all your mind.  This is the greatest commandment’. (Matthew 22: 34-40). To love God is to love all that belongs to God unconditionally.  The second commandment is to love our neighbors as we love ourselves.  ‘Our neighbor’ is not necessary limited to geographical location; it includes even those who are different from us.  Love embraces all as documented in the Paul’s letter to the Corinthians, “Love is patient and kind, love is not jealous or boastful, it is not arrogant or rude.  Love does not insist on its own way; it is not irritable or resentful; it does not rejoice at wrong, but rejoices in the right.  Love bears all things, believes all things, hopes all things, and endures all things”(Corinthians (13:1-7).  Therefore everything devoid of love renders every effort futile.  If love is found wanting in anything we do, we cannot please God.

Peace

A person of faith cannot be at peace if they are not in good relationships with one another.  I stand for the side that peace cannot be defined but rather described, so I describe peace as a state that humanity attains through wellbeing, with power to reproduce oneself with dignity and spiritually balance. The Merriam and Webster Collegiate Dictionary outline ingredients of peace which are; tranquility, freedom from emotional oppression, harmony in personal relations and pact of agreement to end hostilities. Humanity cannot claim to have peace if they live in a society characterized by divide; and where religion, power and dominance oppress others without regard for their emotional wellbeing. An oppressed person is one without freedom and ultimately one without peace. Discrimination of homosexuals disempowers them and a disempowered person is an unhappy person.  Dignity is also an ingredient of peace and if we continually embarrass our fellow men and women, we are stripping them of the dignity that our maker graciously gave them.  In the process we challenge the decisions of God unaware, through questioning sexual orientations which is not our purpose, we ought not to judge. Oftentimes there is need for compromise and acceptance of differences so as to be at peace with one another and God, Paul wrote, ‘Therefore since we are justified by faith, we have peace with God through Jesus Christ’ (Roman 5:1).  We did not earn the peace granted through Jesus, it is unmerited favor, so humanity should show appreciation by living in faith, peace and harmony.

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Botswana’s Identity Crisis: Where do we place the LGBTQ community?

By: Kaene Disepo

Botswana, well situated at the heart of Southern Africa, prides itself on being the ‘spirit’ of Africa, or perhaps the lesser of all evils in Africa. This is a country with a little over 2.5 million people, yet has already outpaced most of its African counterparts. According to the United Nations Development Programme (UNDP) 2015 African Economic Outlook, Botswana’s ‘growth prospects look broadly favourable’. Moreover, The World Economic Forum, Global Competitiveness Report (GCR) 2014-2015 maintained Botswana’s ranking at 74th out of 144 countries, the fourth position in sub-Saharan Africa, though in 2015, it slipped to fifth position in sub-Saharan Africa. According to the World Economic Forum, ‘the decline is explained by the absence of improvements rather than worsening of policies compared to other fast-reforming countries in Africa’.

Of course, these observations are made through the lens of the economy, but what about its socio-cultural normative values; where does Botswana rank? A much more holistic, yet necessary analysis of Botswana’s progress as a thriving democratic nation, would be its ranking in the Human Development Index, which; ‘examines the intrinsic relationship between work and human development. Work, which is a broader concept than jobs or employment, can be a means of contributing to the public good, reducing inequality, securing livelihoods and empowering individuals. Work allows people to participate in the society and provides them a sense of dignity and worth. In addition, work that involves caring for others or voluntarism builds social cohesion and strengthens bonds within families and communities’ (Human Development Report 2015)

Using this analytical tool, Botswana registers on the medium human development, being number 6 in the continent and positioning it at 106 out of 188 countries and territories. However, delving deeper-and perhaps specifically- into the analytical framework, Botswana ranked 106 out of 155 countries from the newly introduced Gender Inequality Index and more worryingly, is its position on gay rights, from which homosexual activity in Botswana has been illegal and criminalized way before it gained independence. In fact, the only country in Africa which reigns supreme in gay rights is South Africa, our neighbor, having legalized same-sex marriage. Now then, can this issue be ‘explained by the absence of improvements rather than worsening of policies’ or this socio-cultural, even political debacle calls for a more robust and eclectic solution?

I argue that Botswana, the supposedly best governed and least corrupt African country, is experiencing an identity crisis, thus the incessant clash between policy-makers and public opinion. In psychiatry, identity crisis refers to a period of uncertainty and confusion in which a person’s sense of identity becomes insecure, typically due to a change in their expected aims or role in society. Botswana’s battling with her very own identity; of what it means to have Botswana values, to be a Motswana. According to globalisation theorists, the main narrative for identity politics is that there has been an increase in the salience of diverse local and transnational identities at the expense of both national identities and those broad class identities which were traditionally handled by the nation-state. These, include the surge of new social movements such as the civil rights movements, feminist movement, environmentalists, and even the LGBT movements, which centers freedom of sexual preference to be an intrinsic human right. In the case for Botswana, its identity has greatly changed from its pre-colonial period, all the way to post-colonial legacy; not just in the form of formal education and promotion of democratic principles through political elections, but also in fashion, literature and the economy. We seem to have embraced a myriad of these paradigm shifting identities; the women empowerment voice is ever so vociferous, the youth advocates continue their battle, we have integrated into the capitalist world economy. However, social attitudes when it comes to peculiar normative issues are still painted in a negative light. So, who should we look to for a solution?

Incredibly, on the 16th of March, this year, the Court of Appeal ruled in favour of LEGABIBO for it to be registered as a society by the Registrar of Societies. This was an ongoing battle from which Government argued that recognition of the Lesbians & Gays of Botswana was against the Constitution of Botswana and veered away from the norms and values of Batswana. Gay rights has been a topic feared in mainstream politics, with the current governing party, the Botswana Democratic Party (BDP)-a party which has most of its safe seats in constituencies where voter turnout reflects a higher age range- having shied away from. Nonetheless, there has been several voices-prominent and some, surprising- for legalising homosexuality in Botswana. For instance, the former Botswana president, Festus Mogae, has spoken in support of LGBT rights in Africa. In an interview with African Renewal, Mogae maintained that, ‘While I admit that the West often push their agendas on Africa, which we must be wary of, I also believe that we must, as Africans, admit that the world is changing…This means often abandoning some of our long-held convictions about life.’ Indeed, this is so, Batswana must stop cherry-picking when to use the ‘imperialistic’ argument especially on issues which promotes positive freedom. Moreover, other prominent voices have been from first female and former Speaker of Parliament, Dr. Margaret Nasha, and even some of the religious figures have gave their support- a positive note in the reaction against chauvinistic, religious underpinnings of why gay rights are socially abhorrent.

This is a complex social phenomenon that requires robust and eclectic ways of dealing with it. From the grassroots, Guidance and Counselling in schools need to address issues of the LGBT community under the guise of a civic society. Policy-makers need to refrain from cherry-picking what to include in the so-called ‘Moral and Tolerant Nation’ and really act on what it preaches. Although, Botswana is not as extreme as the likes of Somalia, Congo or even her neighbor, Zimbabwe, there is a need for paradigm shifting ideologies on their approach of social inclusion. Education can never be over emphasised, however, even taking a firm stance in mainstream is essential. The unfortunate truth is, we are power-hungry and thus tread carefully when it comes to issues considered an abomination. Just a caution, Female Genital Mutilation, child marriages, slavery, racial segregation, patriarchy, well all-some still are in some parts of the world-considered legitimate under the guise of social justice. Continuing to react against communities which begs for social inclusion, recognition of their inalienable rights (by virtue of being citizens), will only highlight the regressive nature of this country. The LGBTQ community, also deserve a place in the sun, it is morally just and it is fundamental of their human rights.

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LEGABIBO Press Statement on Hon Kgositsile’s tabled motion

Press Statement

Date: 31st March 2016

Title: Decriminalization of Section 164 A and C

The Lesbians Gays and Bisexuals of Botswana (LEGABIBO) would like to thank Hon. Sergeant Yellowman Kgositsile, Counsellor of Marulamantsi Ward, for reaching out to the LGBTI community and contribute to elimination of stigma and discrimination, addressing exclusion of LGBTI, fighting homophobia and helping LEGABIBO to access structures which have always been difficult to access. We also commend the Gaborone City Council for allowing Hon. Yellowman Kgositsile to table such a motion. We acknowledge that this is the first time in the history of LGBTI advocacy that Council conversed on LGBTI issues.

On the 29th March 2016, the honourable house of the GCC heard a motion tabled by honourable Counsellor Yellowman to lobby for decriminalization of same-sex-sexual activities resulting in the unilateral support by the Honorable Council members. This action is important to the LGBTI community because it aims to enhance the health, wellbeing, inclusion and non-discrimination of the LGBTI in Botswana. In addition, the honorable GCC house calls for the inclusion of LGBTI in HIV/AIDS interventions and education of health care providers, echoing the position that LEGABIBO represents.

LEGABIBO is grateful for the forward thinking of politicians such as Rre Kgositsile and honourable members of the Gaborone City Council for their dedication to contributing to HIV response and protecting the marginalized groups. We acknowledge that the mandate of the honourable house is not to change laws, but we appreciate their efforts to lobby for change and make recommendations to law makers in their respective positions. Their contribution shall be cited in the history LGBTI advocacy in Botswana.

LEGABIBO would like to call upon all politicians to emulate this example by Rre Yellowman and Gaborone City Counsel to lobby for legal reform and make recommendations for law makers.

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PRESS RELEASE: GROUNDBREAKING JUDGMENT BY BOTSWANA COURT OF APPEAL ON FREEDOM OF ASSOCIATION AND LGBTI RIGHTS

On 16 March 2016, a full bench of the Court of Appeal of Botswana delivered a significant judgment in the case of Attorney General v Thuto Rammoge and 19 Others upholding the decision of the High Court and ordering the Botswana government to register the organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) as a society in terms of the Societies Act. Whilst activists gathered at the Court of Appeal in Gaborone to hear the judgment, activists from throughout SADC posted messages of support on social media.

In 2012, LEGABIBO, which had been coordinated from within the Botswana Network on Ethics, Law and HIV/ AIDS (BONELA), applied but were refused registration as a society by the Director of the Department of Civil and National Registration and subsequently the Minister of Labour and Home Affairs. The government’s position was that lesbian, gay and bisexual persons’ rights were not recognised by the Constitution and the objectives of LEGABIBO were incompatible with peace, welfare and good order in Botswana.

Thuto Rammoge and other activists, with technical and legal support from the Southern Africa Litigation Centre (SALC), the Open Society Initiative of Southern Africa (OSISA) and BONELA, took the government of Botswana to the High Court seeking a review of the decision to refuse registration. They argued that the decision was irrational and in violation of their constitutional rights to equal protection of the law, freedom of association and freedom of expression. The activists obtained a successful judgment in the High Court in November 2014, but the State appealed the decision.

The Court of Appeal reaffirmed that the refusal to register LEGABIBO was both irrational and in violation of the right to freedom of association. In an important judgment for the LGBTI community, the Court emphasised that there is no legislation in Botswana which prohibits anyone from being homosexual. The Court went further to hold that the objectives of LEGABIBO, which include promoting the human rights of LGBTI persons and advocating for law reform, were not unlawful. Importantly, the Court of Appeal emphasised that fundamental rights are to be enjoyed by every person and to deny this, is denying an individual’s human dignity.

Caine Youngman, LEGABIBO Advocacy and Awareness officer, has been a part of the registration process from the beginning and said that, “The win gives us hope, faith and belief in Botswana’s legal system. It has been a very long and exhausting 11 years since we first started the journey to have our organisation registered.”

“This judgment is one of the many occurrences in Botswana where democracy has come to play, the courts are protecting minority rights and giving a voice to the LGBTI community” said Anna Mmolai-Chalmers, LEGABIBO Coordinator at BONELA.

BONELA’s Executive Director, Cindy Kelemi said, “there is a lot that still has to be done to ensure promotion and protection of the human rights of the LGBTI persons and Parliament as the legislative arm of government is responsible for making laws which will protect LGBTI persons from discrimination, stigma and abuse.”

“The judgment emphasises the importance of the fundamental right of individuals to freely associate,” said Tashwill Esterhuizen, SALC’s Sexual Minority Rights programme lawyer. “The ability to share opinions in a collective manner and to campaign for human rights is important and all governments have a duty to protect the right to freedom of association.”

The activists were represented by Attorney Dick Bayford, from Bayford and Associates, and Lesego Nchunga, from Dow and Associates.

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 For more information:

Cindy Kelemi, Executive Director, BONELA: cindyk@bonela.org; +267 73 586 054

Tashwill Esterhuizen, SALC: tashwille@salc.org.za

Anna Mmolai-Chalmers, LEGABIBO Coordinator at BONELA: Legabibocoordinator@bonela.org; +267 71 340 794

 Bradley Fortuin, BONELA LGBT Communication and Documentation Officer: dblfortuin@gmail.com; +267 72 450 825/+267 71 340 794

Documentation on the case is available at: @follow_salc #LEGABIBOregistration;

http://www.southernafricalitigationcentre.org/cases/ongoing-cases/botswana-high-court-challenge-to-refusal-to-register-lgbt-organisation/

Batswana warm up to gays, study shows

By: Tefo Pheage

A newly released Afro Barometer report estimates that at least 43 percent of Batswana are not opposed to homosexuals, ranking the country among the most tolerant on the continent.

Entitled ‘Good Neighbours’, the perception survey asked respondents whether they would be opposed to having homosexual neighbours. Thirty-three countries participated in the study released this week.

In four countries, Cape Verde, South Africa, Mozambique and Namibia, more than 55 percent of citizens there are accepting homosexuals as neighbours, according to the study.

“In three other countries, more than 40 percent of citizens say they are not opposed to having homosexual neighbours, with Mauritius at 49 percent, São Tomé and Principe at 46 percent and Botswana at 43 percent,” says the report. On the other end of the scale, however, intolerance towards homosexuality was found in the high 90s in Senegal (97 percent) as well as Guinea, Uganda, Burkina Faso, and Niger (all 95 percent).

According to the report, Southern Africans are the most tolerant to homosexuals with 32 percent saying they do not mind gays, followed by Central Africa with 25 percent, North Africa with 17 percent, West Africa with 15 percent and lastly East Africa with 12 percent. “A large majority of African citizens are intolerant of homosexual citizens. Across the 33 countries, an average of 78 percent of respondents say they would ‘somewhat dislike’ or ‘strongly dislike’ having a homosexual neighbour,” the report says.

Afro Barometer researchers pinpointed Mozambique as an interesting demonstration of how policy change may interact with popular attitudes.

“In 2014, Mozambique adopted a new penal code that decriminalises homosexuality.

“Since there are no available data on Mozambicans’ attitudes toward homosexuals prior to decriminalisation, we may debate as to whether relatively high acceptance precipitated decriminalisation or the legal reform has had the added benefit of influencing attitudinal change among the wider citizenry.

“The two countries expressing the highest tolerance for homosexual citizens, Cape Verde and South Africa, also do not criminalise homosexuality,” researchers said..

The study also found that in some cases, ordinary citizens are ahead of law reform by embracing homosexual rights at a time when some practices are illegal in their countries. This is true in Namibia and Mauritius, two countries with comparatively high acceptance of homosexuals despite legislation that make homosexuality a crime.

The data further suggested an important link between tolerance for homosexuals and respondents’ age and education levels.

“Younger and more educated Africans tend to be more tolerant of homosexuals than older Africans and less educated citizens,” researchers said.

“This finding suggests that while current attitudes are largely negative, it is possible that Africa will become progressively less homophobic over time.” The researchers said contrary to common portrayals, Africans expressed high degrees of tolerance for people from different ethnic groups, of different religions, immigrants, and people living with HIV/AIDS.

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  • This article was first published in Mmegi Newspaper.

Judgment has broader implications for many African countries that do not recognise sexual minorities

By: Tashwill Esterhuizen

On 16 March, the Botswana Court of Appeal unanimously delivered a landmark judgment in which it dismissed the government of Botswana’s appeal against a Gaborone High Court decision which allowed for the registration of the Lesbians, Gays and Bisexuals Organisation of Botswana (LEGABIBO).

The case is a victory for the advancement and recognition of fundamental, universal human rights for gay, lesbian, bisexual and transgender persons, both in Botswana, and throughout Africa.

In February 2012, activists sought to have their organisation, LEGABIBO, registered. The Director of the Department of Civil and National Registration and the Minister of Labour and Home Affairs refused the application for registration on the basis, amongst other things, that same-sex practices are criminalised in Botswana, and therefore lesbian, gay and bisexual individuals were not recognised as persons protected by the rights provisions in the Constitution of Botswana.

But the High Court of Gaborone rejected the State’s argument as irrational and ordered that LEGABIBO be registered as an organisation.

The Court of Appeal has now reaffirmed the decision of the Gaborone High Court, by holding that the refusal to register LEGABIBO was not only unlawful, but a violation of the right of LGBTI activists to freely assemble and associate.

It noted that LEGABIBO’s objectives are to “further human rights and the wellbeing of LGBTI persons in Botswana and that advocating for the laws to be changed in and of itself is not illegal. It is the democratic right of every citizen to express their opinions about a law. It does not follow that when an organisation advocates for changes in the law on abortion, the death penalty, or same sex sexual acts, that the organisation or its members is engaging in abortion, or murder or same sex sexual acts”.

The court ultimately found that the Minister based his decision on mere speculation, that the decision was unsupported by evidence, and that it unjustifiably limited the rights of activists.

The Court of Appeal judgment is not only significant because of its promotion of human rights for LGBTI activists, but also because of its recognition and appreciation of the vulnerability of sexual minorities in society. The Court emphasised that although there might be dissenting views, “members of the gay, lesbian and transgender community form part of the rich diversity of any society”.

Notably, the Court mentioned that there was no evidence to the contrary, before it that sexual orientation is not a natural attribute of every human person or that it can be learnt or imposed.

The Court emphasised that homosexuality has never been a crime. In Botswana (as in several other African countries) the law prohibits certain sexual practices between consenting adults. The law does not, however, extend to the criminalisation of sexual attraction to members of the same sex and does not affect basic constitutional rights.

It is worth noting that although sections 164 and 167 of the Botswana Penal Code outlaw certain practices (commonly referred to as “sodomy”) irrespective of the gender and sexual orientation of the perpetrator, these provision are often interpreted and applied to stigmatise, discriminate against and harass same-sex persons.

Importantly, the Court of Appeal held that fundamental rights, including human dignity, are universal and enjoyed by every member of society irrespective of a person’s gender or sexual orientation. The State can only validly limit the fundamental rights of persons if it is reasonably justifiable to do so within the circumstances.

In a similar case, the Kenya High Court also found that it was obvious that a human being regardless of his gender or sexual orientation is a person for the purpose of the Constitution of Kenya. The court found that the rights to equality and dignity would be denied if people were barred from claiming protection from discrimination based on their sexual orientation.

Despite this victory, sexual minorities throughout Africa remain extremely vulnerable to stigma, harassment and arbitrary arrest.

The LGBTI community is in need of assistance in the quest for equal treatment. Arguably, the continued existence of laws in many African countries which criminalise same-sex practices often perpetuate stigma, persecution and discrimination on the basis of a person’s sexual orientation and gender identity.

Moreover, the criminalisation of same-sex acts also pushes vulnerable people away from important health services and information about their sexual and reproductive health needs.

Recently, Nigeria has adopted a law which not only explicitly outlaws marriage contracts or civil unions between same-sex persons, but also the formation of organizations or associations which represents the interest of LGBTI persons. This is contrary to the provisions of Nigeria’s own Constitution and other regional instruments which protect the right of individuals to freely assemble and associate.

Nonetheless, the Botswana Court of Appeal decision represents significant progress in the promotion of the rights of lesbian, gay, bisexual and transgender persons. The judgment has broader implications for Botswana and many other African countries which do not provide recognition of sexual minorities. It highlights the State’s duty to uphold basic rights and to ensure dignity, tolerance and acceptance for marginalised and unpopular groups. It also illustrates the importance of the independence of the judiciary and highlights the judiciary’s role and mandate in the protection of the most vulnerable groups in society.

Tashwill Esterhuizen is a minority rights programme lawyer at the Southern African Litigation Centre (SALC). SALC conducts strategic litigation and advocacy throughout Southern Africa.

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International Women’s Day: A Call for Parity

As we commemorate the International Women’s Day, we acknowledge all the efforts into archiving gender parity Botswana being signatories to International human rights law that protect the rights of women. These changes have gone a long way in addressing patriarchal policies and laws that have oppressed and dictated the non-involvement of women in the development of our country. Great strides towards overcoming these adversities have been made. Today we have women leading in the political, economic, social and cultural sectors. However BONELA notes that these were only focused on privileged cis gendered women but exclude lesbian, bisexual and transgender (LBT) women who are often left out in mainstream women’s movements, meaning that they have not, and are still not included in policies and programmes that are meant for the advancement of women’s rights and equality as per the Gender Parity Index.

The Gender Parity Index (GPI) measures the relative access and progress of education of males and females in developing countries. But this desegregation does not acknowledge sexual orientation and gender identity and expression; this normative-boxing which leaves those who are gender non- conforming, transvestite, bisexual, lesbian and intersex. We therefore argue that it is a bit premature to consider the index an accurate measure when these individuals are excluded.

Secondly the GPI’s focus on heterosexual women extenuates a sense of privilege our heteronormative society has bestowed upon particular types of women. This generalization of “women” overlooks diversity based on sexual orientation, gender identity and expression. It overlooks the fact that LBT women are not recognized in educational institutions. The problems they face such as stigma and discrimination stemming from education policies and laws are not paid attention to thus creating a stifling learning environment for LBT persons.

LBT activists, organizations, and allies have noted gradual, successful trends globally, of inclusion of LBT; however there is silence in Botswana regarding the discrimination of young LBT persons in schools. There is silence in the teacher’s curriculum, on how teachers can provide support for young LBT women. This silence has contributed to violence that LBT women face such as bullying, stigma and discrimination, verbal abuse, sexual and physical violence which negatively impact on the fundamental human right of access to education. This disparity evidently affect the education of LBT women because these young LBT women are taught to be ashamed of their being, hide their sexuality, that they are not abnormal and unnatural. These violations go unpunished and are hidden by the face of patriarchy aided by gender parity that continues to emphasize misguided heteronormative ideologies.

We wish to remind the women’s movement in Botswana and the government that gender equality goes beyond numbers and tokenism and parading educated, privileged cis gendered women. Gender equality is a fundamental human right, it means prioritizing the human rights of the most disadvantaged and vulnerable women in our society. It means talking about urgent human rights issues that women face, addressing barriers to education. It means respecting, protecting, promoting and fulfilling the needs of the few women who are different.

#Pledgeforparity means re-committing to tearing down the barriers that LBT women face and raising awareness on women who are missing in the gender parity agenda.

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