The death of a bill

Daniel Chida

Parliament defers Controversial homosexuality Bill

Minister of Justice, Ronald Machana Shamukuni, this week put on hold debate on a bill that if passed would decriminalise same sex relations.

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The Bill which had gathered much controversy in recent weeks was aimed at amending the Penal Code by striking out Sections 164 (a) and (c). Before deferring the Bill, Shamukuni told Parliament that by way of general background the Penal Code establishes a code of criminal law for Botswana. Division III of Part II of the code makes provision for offences against morality and Section 164 provides for unnatural offences as follows-“Any person who-

(a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) permits any other person to have carnal knowledge of him or her against the order of nature, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.”

Minister Shamikuni explained that in 2022, the Court of Appeal in the landmark case of Attorney General and Letsweletse Motshidiemang and Another, declared Section 164 (a) and Section 164 (c) of the Penal Code to be unconstitutional. These provisions criminalised sexual relations “against the order of nature”. He said that the three judge bench of the Botswana High Court unanimously held that laws criminalizing same-sex relations are unconstitutional and need to be struck down. He said that the High Court declared that the time was ripe to decriminalize homosexuality and that sexual orientation is innate to an individual and that the criminalization of same-sex sexual conduct infringed the rights to liberty, dignity and privacy and constituted discrimination. Shamukuni also mentioned that the High Court added that there was no public purpose in continuing the criminalization and that there was no justification for infringing upon those rights. He said that since the publication of this Bill, a number of Constitutional issues have been raised with his Ministry regarding the Bill. He further told Parliament that a Constitutional issue was raised by LEGABIBO, through a letter dated 22 June 2023 requesting that he withdraws the Bill on the basis that where the provisions of an Act have been struck down by a Court of law, Parliament is not constitutionally empowered to debate whether or not to delete the provisions. “LEGABIBO argues that the provisions should be removed from the Penal Code by the Attorney General exercising powers under the Revision of the Laws Act. I therefore seek to satisfy myself that the views and concerns of all stakeholders pertaining to interpretation of the Constitution are considered and that the provisions of the Revisions of Laws Act have been thoroughly interrogated and made clear. It is on the basis of the above that, I beg to defer the Penal Code (Amendment) Bill No. 29 of 2022 to allow for intensive interrogation of the Constitutional issues raised with my Ministry regarding the Bill.” The Voice Staffer, DANIEL CHIDA speaks to some people who have been vocal on the issue to get their views.

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The death of a bill

Thuso Tiego- Pastor

The Botswana Democratic Party government wanted the sympathy of the minority population and in this case the Legabibo community. The presentation of the bill at Parliament was not necessary. The Attorney General should have advised. However, I suspect the BDP wanted to win the hearts of the minority and the whole thing backfired. BDP knows the church to be docile and passive but this time around they got the shock of their lives. It will take them a while to recover from their own goal. It took him long to defer it because they were stranded not knowing how to come out of it and still appear good people.

The death of a bill

Uyapo Ndadi- Human Rights Lawyer

The deferral confirms that the whole process was unnecessary as the courts have already decided. Same sex couples can continue to be sexually intimate as the sodomy law was long kicked out of bedrooms of consenting adults. The executive drew unnecessary attention to themselves and parliament. In the process they divided the nation. The amendment should have been introduced differently to say since two clauses under section 164 of the Penal Code no longer exist, the Penal Code is amended to confirm that we now have one section 164, with no sub paragraphs.

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In that way I doubt they would have been issues. The sodomy laws are just decorating or mucking our law books, they are not effective. The debate in parliament would have been pointless as parliament can’t say NO. Their hands are tied. The issue was WON or LOST at court (depending where one stands). The moment the law is declared unconstitutional, it ceases to operate. In the end, the deferral or withdrawal is victory for those who support LGBTIQ rights as it means parliament would not have the opportunity to debate a settled issue as it may fuel the stigma and discrimination that still exists.

The death of a bill

Master Mfundisi- Political Analyst

We are approaching elections and the corrupt BDP is faced with imminent defeat and therefore unable to make hard decisions. Why the government decided to introduce a statutory amendment is any person’s guess. Botswana is a Republic and a Constitutional Democracy not a religious one. Self righteousness by some of these Christian denominations is mind boggling. Christians have committed in the past serious misdemeanors including sodomy, rape, adultery, genocide and wars. Self righteousness is no religion. BDP politicians are unprincipled and lack moral campuses.

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The Constitution inherited from the British colonial regime protects human rights and freedoms. It outlawed any discrimination based on race, religion and creed. The Court of Appeal has outlawed discrimination on the basis of social orientation. Period. Any religious and narrow political narcissism will not suffice. No one can be criminalized for engaging in homosexualism. Political opportunism and expediency by the government betrays the principle of the Rule of Law. Botswana is not Iran or Saudi Arabia. All on all, where the rights of Christians end, other people’s rights begin. Social orientation by other people erodes the rights of Christians in what way? The BDP government is timid and unable to protect the constitution

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