Botswana: Separation of powers pillar of democracy

Last week Botswana made history specifically in the African context where human rights are not always enshrined when three High Court Judges – Abednico Tafa, Michael Leburu and Jennifer Dube “struck down” Sections 164, and 165 of the Penal Code. The 133-paged judgement further explains that, “The word “private” in Section 167 of the Penal Code is severed and excised therefrom and the section to be accordingly amended,” and the reason for this is because the section, “…seeks to regulate conduct deemed grossly indecent, done in private…As long as the applicant display affection, in private and consensually with another man, such conduct is not injurious to public decency and morality.” This all concluded in a ruling which decriminalised consensual same-sex acts her in Botswana.

The applicant of the case was a man, Letsweletse Motshidiemang who was represented by a team of attorneys led by Gosego Lekgowe. The respondent, who was also ordered to pay the applicants costs, was the Attorney General who was represented by Advocate Sidney Pilane with G. I. Begani. The judgment also notes the “Amicus Curiae” as LEGABIBO who in this case were represented by attorney’s Tshiamo Rantao and Emang Gadise. “The role of an amicus is to draw the attention of the court to relevant matters of law and fact to which attention would not otherwise be drawn…The amicus was not only a friend in need, but a friend indeed.” The lengthy judgement also speaks to human rights and refers to terms such as “moral relativism”, “choice and preference”, “over-regulation of human conduct and expression” and “…the rule of law, which recognizes and protects both the majority and minority rights and interests.”

In response to this judgement the Attorney General, Advocate Abraham Keetshabe explains that Botswana being a constitutional democracy founded on the rule of law will respect this decision by the High Court. He also adds that the judgement indicates that, “The system of governance of Botswana is anchored on the rule of law with all the arms of the State operating independently of each other in their functions. There is mutual respect of each arm by the others including the judiciary, and in that regard, we fully respect the decision of the High Court,” explains Keetshabe. He notes however that they have not yet studied the document but once they do they will lodge an appeal. “We shall have to study the judgment of the court very carefully; and inform ourselves on whether we will lodge an appeal or not. Other than that, it is our intention to file an appeal with the Court of Appeal.”

A retired Professor, Zibani Maundeni views the decriminalization case as an important ruling that needed to be made particularly in context to globalization and Botswana’s position on the world stage. “Whether or not it shows the independence of our institutions it was an important decision,” says the former University of Botswana professor. He also recognizes the leadership role played by the three Judges in this historic judgment. “While political leaders where fighting over the elephant ban decision, judges decriminalised homosexuality and diverted the world’s attention from elephants to more focused human rights issues. The decision was a milestone that freed the country from world criticism to world praise.”

Maunden observes the revolutionary role that the judiciary played in this context. “The three judges may have thought that law-makers were too hesitant to make the decision that brings Botswana into the realms of modernity,” says Maundeni adding that, “If a panel of three judges unanimously decided to decriminalise homosexuality it may mean time was ripe for the decision.” Maundeni says it is now the onus of the politicians to manage the internal pressure against this ruling. “Now the politicians must manage the internal opposition from the religious community and from traditional elements of our society.”

A political science lecturer from the University of Botswana’s Political Science department, Leonard Sesa does not agree with the AG and points to the difficulty of proving this separation of powers when the judges themselves are appointed by the Presidency. “It goes back to who appoints these judges, and whose interests they will serve? The sitting President appoints them. And he also appoints the Independent Electoral Commission Commissioner or the IEC Commissioner. What do you expect if I am appointed by the President? The point goes back to who appoints these people at these legal bodies?”

On this basis Sesa concludes that therefore this judgement was influenced from above and even throws a rhetorical question, “Don’t you think it was influenced by the sitting President? One way or the other the sitting President must have a say. There are those cases they don’t tamper with but these big cases … I still doubt the independence he speaks off. You can’t bite the hand that feeds you. Who feeds them? The government does,” says Sesa.

Sesa observes that Botswana has been recognized as the “Shinning democracy in Africa” but that younger democracies such as South Africa have since out shined Botswana. “Look at the Ombudsman in South Africa, the office has so much power and independence,” says the political analyst. In his view a complete overhaul is required to enable the Judiciary to have more independence from the Executive and Legislator. “Let’s give these institutions more responsibilities. They should not be so dependent on the Office of the President. They need to work without interference from any other office. We are known as a shining democracy in Africa but we still need to change to suite the current world status,” says the political scientist.

The CEO of LEGABIBO’s Anna Mmolai-Chalmers says the State or anyone for that matter has the right to appeal a judgment. “This is what is good about our law, and our democracy in Botswana. The fact that you have an opportunity to appeal, you are given that chance.” In the same breadth the human rights activist is disappointed that the same State that should be protecting them will be fighting a “good judgment”. “The appealing or questioning of this judgement will affect us, it will sadden us and truly disappoint us. But we welcome the democracy of our country otherwise we wouldn’t have even been able to approach the courts.”

This article was written by Boitshepo Balozwi . It is part of Gender Links #VoiceandChoice series. It was first published in the Botswana Guardian.