In a victory for human dignity and hope, Botswana decriminalizes same-sex relationships

December 1, 2021 by 4 Comments

On Monday, November 29, Botswana’s Court of Appeal unanimously upheld an earlier 2019 ruling which had decriminalized same-sex relationships. In so doing, the court upheld judiciary independence, democracy, the centrality of Constitutionally protected and established rights, as it hammered another nail into the coffin of colonial and neocolonial law and culture. Within a 24-hour span, Barbados declared itself a full republic, with no need of an English Queen; Honduras elected its first woman president, and a democratic socialist at that; and Botswana rejected homophobia and the persecution of LGBTQI+ persons and communities. Talk about conjunctural moments, sing about decolonization.

Botswana gained formal independence from Britain on September 30, 1966. The new republic adopted the penal code written, largely by British hands, in 1964, a Penal Code in force to this day. Botswana’s Constitution was written in 1966. In the 1964 Penal Code, Article 164 addresses “Unnatural offences”. In particular Article 164, Sections a and c declare: “Any person who has carnal knowledge of any person against the order of nature; … or 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.” This law and language formed part of the grand British imperial obsession with rooting out `carnal’ corruption in the colonies, an obsession that dated back to 1860. A prison term of no more than seven years is but one of the gifts the British left behind.

In 2016, Letsweletse Motshidiemang, a young gay man, applied to the High Court to have the laws repealed. He described growing up as a gay boy and then young gay man in Botswana, and argued, essentially, that the Constitution protected his right to be who he was and that Botswana itself had changed in the intervening decades. He relied on the Court to respect the Constitution, and he was not disappointed. On June 11, 2019, the High Court agreed and declared that the articles under discussion violated the Constitution, in substance and spirit. The Government appealed. This Monday, the Appeal Court, the highest court in the land, declared, “Those sections have outlived their usefulness, and serve only to incentivise law enforcement agents to become key-hole peepers and intruders into the private space of citizens.”

In previous cases, the Court of Appeal has consistently declared the Constitution a living document central to the democratic project. In 1994, in the Unity Dow case, the Court of Appeal declared, “The Constitution … cannot be allowed to be a lifeless museum piece … the courts must continue to breathe growth and development of the state through it … The primary duty of judges is to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever developing society, which is part of the wider and larger human society governed by some acceptable concept of human dignity.” From Honduras to Barbados to Botswana, and beyond, this week has brought a victory for human dignity.

 

(By Dan Moshenberg)

(Image Credit: Jurist)

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In Botswana, a great victory for Tshepo Ricki Kgositau and women everywhere

December 26, 2017 by 6 Comments

Tshepo Ricki Kgositau

On Tuesday, December 12, Tshepo Ricki Kgositau heard the news she has struggled to hear for years. Botswana’s High Court ruled that Tshepo Ricki Kgositau is who she says she is, who her family and friends and colleagues have long said she is. A woman. High Court Justice Leatile Dambe gave the Registrar of Births and Deaths seven days to amend Kgositau’s birth certificate to identify her as female. The High Court also gave Botswana’s Director of the Registrar of National Registration 21 days to issue a new Identity Document identifying her as female. This is a major victory for Tshepo Ricki Kgositau; transgender women in Botswana and across the continent; and women everywhere. In every generation, a woman stands up, asks “Ain’t I a woman?”, and then gets to work.

Thirty years old, born in Gaborone, raised between Botswana and South Africa, Tshepo Ricki Kgositau helped found the Rainbow Identity Association in Botswana. From there she moved on to work with Gender DynamiX, based in Cape Town, where she is now Executive Director.

In 2011, Tshepo Ricki Kgositau applied to the Civil and National Registration to have her gender marker changed from male to female. She was then rejected, ostensibly because at that time Botswana’s laws did not recognize transgender people. And so, Tshepo Ricki Kgositau sued to have her identity recognized and her identity card and birth certificate corrected. Last December, Tshepo Ricki Kgositau underwent gender confirmation surgery, in Thailand. Her family and childhood friends confirmed her female identity from her childhood, and confirmed their love for her as well. A psychologist confirmed her “innate” identity. The case was to be heard in August, but had to be postponed because Justice Dambe was unavailable.

Justice Dambe’s decision follows on another landmark decision, in September of this year, in which a transgender man, known as ND, won a ten-year battle to have his gender marker changed. That decision followed upon a court decision, in 2014, that forced the government to unban and formally register Lesbians, Gays and Bisexuals of Botswana, or Legabibo. It’s been a year for transgender rights in Botswana, and a decade for the rights of lesbians, gays, bisexuals and transgender people in Botswana.

Thanks to the High Court and, even more, to the work and labor of hundreds and thousands of women and their supporters, it’s been a decade for women in Botswana, and through them, across the continent and the globe.  On October 12, 2012, the High Court ruled that Edith Mmusi and her sisters, Bakhane Moima, Jane Lekoko, Mercy Kedidimetse Ntshekisang could continue to live in the house they had always inhabited. In a landmark ruling, the Court ruled that women should be allowed to inherit by customary law; that Edith Mmusi, who had lived continuously in her house and home, should not be excluded from inheriting … her own home. On December 12, 2017, the same Court ruled that Tshepo Ricki Kgositau should not be excluded from the identity and body that she had inhabited for almost all of her life. In both instances, women – Edith Mmusi and her sisters, Tshepo Ricki Kgositau – said they would not haunt their own lives. They would be present, active, alive … and they forced the State to agree. Just as five years ago, so today, it’s a great day for Tshepo Ricki Kgositau, for women across Botswana, across southern Africa … and beyond.

 

(Photo Credit: Tshepo Ricki Kgositau / The Independent)

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African Women Stand their Ground Against Big Coal

January 24, 2015 by 1 Comment

For the past week, women from mining communities in South Africa, Mozambique, Botswana, Zambia and Zimbabwe have been meeting in Johannesburg to share their experiences, strengthen their networks, map and take the way forward. They have been brought together by WoMin, African Women Unite Against Destructive Resource Extraction. They have had enough of environmental devastation, corporate predation, and State violence. They are sick and tired of living and dying in communities and households where everyone is tired, sick, and dying. And they have had enough of being ignored or silenced. They come together to say, Now is the time! They come together to make NOW the time.

In an hour long interview this week, Samantha Hargreaves, Regional Coordinator of WoMin; Nhlanhla Mgomezulu, Coordinator of the Highveld Environment Justice Network; and Susan Chilala, Secretary of the Rural Women’s Assembly, in Zambia, laid out the program. Generally, the women are calling on the State to divert its massive investments in the infrastructure of fossil fuel extraction into alternatives, particularly solar, wind, tidal, and thermal, all plentiful in the Southern African Development Community, SADC, region. All of the countries are already investing great sums of money to make mines happen. The women say: Make something else happen; something sustainable and renewable that will meet the challenge of growing consumption in growing economies.

This diversion would mean that the State would have to reconsider its comfortable relationship with those few who make huge profits at the expense of the many. This would also mean, the women said pointedly, that politicians, such as Cyril Ramaphosa in South Africa, would have to address their complicity as shareholders and leaders in the mineral extractives sector.

The majority of the interview describes the impact of coal mining on local communities. Susan Chilala explained that coal mining attacks women small scale farmers most viciously. She described the impact of coal mining on farming and food security. She talked about the impact on women when their space is taken over by an industry that is so deeply male dominated, from top to bottom.

Nhlanhla Mgomezulu described the impact on women in the South African Highveld: “We women are the ones who suffer most.” Women suffer as individuals, in that their own health is endangered by poisoned water, air, and land, but they suffer even more as principal caregivers of the community. When the children are sick, women work more intensively. When the men return from the mines with asthma, kidney failure, tuberculosis, injuries and more, women are work more intensively. And this labor is `free’ and it’s 30 hours a day, 8 days a week, for life. If that’s not slavery … what is?

Last year, Greeenpeace published a report, which looked at Witbank, in Mpumulanga, in which they found that Witbank has the dirtiest air in the world. This is the gift of coal as a mainstay of `development’: “Sonto Mabina … works at a small tuck shop that’s just a short walk from her home in an informal settlement over the train tracks outside Witbank, in Mpumalanga. She’s lived here for 25 years, arriving well before the three coal washeries that now surround her house … Sonto Mabina, or Katerina as she likes to be called, lives with her husband, Andries. Their house has no electricity or water and Katerina uses a coal stove to cook their suppers, the black plumes of smoke clouding their home. A municipal truck brings water once a week, but most say it’s too polluted to drink. If you can afford to, you buy bottled water in this area of the country; if not, you boil it like Sonto does and you hope for the best. `Dust is my main problem,’ she says. `Every time my child goes to the hospital it’s because of the dust. The doctors say his chest is full of it. The doctors asked me where I lived and I told them. My other child also has problems with his nose because it is always running – the dust affects him too.’ It’s an everyday problem here.”

The women who have gathered in Johannesburg are saying NO to that everyday. They are engaging in a public dialogue, breaking down barriers, transforming isolation into community, teaching as they learn, and they are demanding a better present. Not a better future, a better present. They have lived too long with politicians and others ignoring them. They are demanding that the State take climate change, the environment, community health and wellbeing, and women seriously. African women are standing their ground and more. They are organizing and on the move. The time is now!

(Photo Credit: Mujahid Safodien / Greenpeace)

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In Botswana, a great victory for Edith Mmusi and women everywhere

September 4, 2013 by 10 Comments

 

Edith Mosadigape Mmusi and her three sisters – Bakhane Moima, Jane Lekoko, Mercy Kedidimetse Ntshekisang

Edith Mosadigape Mmusi and her three sisters – Bakhane Moima, Jane Lekoko, Mercy Kedidimetse Ntshekisang

October 12, 2012, was a great day for Edith Mosadigape Mmusi, her three sisters – Bakhane Moima, Jane Lekoko, Mercy Kedidimetse Ntshekisang – and women across Botswana and southern Africa. On that day, the High Court of Botswana ruled that women should be allowed to inherit by customary law. The Court ruled that Edith Mmusi, who had lived continuously in her house and home, should not be excluded from inheriting … her own home.

The sisters were supported by Priti Patel, of the Southern African Litigation Centre, based in Johannesburg, as well as other women’s rights activists across Southern Africa. They were also supported by the earlier Attorney General v Unity Dow, a landmark women’s rights case. From top to bottom and side to side, this was a women’s case, brought by women activists, women jurists, women elders, women. Upon leaving the High Court in Gabarone on October 12, Edith Mmusi said, “It’s a great day for us.”

It was indeed, and it just got better.

Yesterday, in a unanimous decision, the Court of Appeal in Ramantele v Mmusi and Others upheld and strengthened the High Court’s October decision: “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”

In his concurrence, Chief Justice Kirby noted, “Any customary law or rule which discriminates in any case against a woman unfairly solely on the basis of her gender would not be in accordance with humanity, morality or natural justice. Nor would it be in accordance with the principles of justice, equity and good conscience.”

Priti Patel put the day’s decision and event in context: “The judgment today by the Court of Appeal made it clear that women are not second class citizens in Botswana. The Court of Appeal’s unanimous decision – noting that customary law unjustly discriminating against women solely on the basis of their gender would violate the Constitution and the laws of Botswana – was a significant move forward in ensuring the end of gender discrimination in Botswana. Some people had feared that the Court of Appeal would set the fight for women’s rights back yet again,” said Patel. “But instead they ruled unanimously in favour of equality and against gender discrimination. It is a hugely important decision not only for Botswana but for women across southern Africa.”

It’s a great day for Edith Mmusi, for Bakhane Moima, Jane Lekoko, Mercy Kedidimetse Ntshekisang, for Unity Dow and Priti Patel, for women across Botswana, across southern Africa … and beyond.

 

 

(Photo Credit: BBC)

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It’s a great day for Edith Mmusi and her sisters and her sisters’ sisters

October 12, 2012 by 5 Comments

Five years ago, four women elders, four sisters – Edith Mosadigape Mmusi, Bakhane Moima, Jane Lekoko, and Mercy Kedidimetse Ntshekisang – decided enough is enough. Today, the High Court of Botswana agreed. Today, four sisters and their sisters opened the door for women across Southern Africa.

Here’s “the story”:

A couple had one son and four daughters. The father had another son in a previous relationship with another woman. At some point prior to the distribution of the inheritance, the younger son told his half-brother that the half-brother could inherit the family home, when the time came. The time never came. Both brothers died in the intervening period. When the time did come to distribute the inheritance, the half-brother’s son, Molefi Ramantele, showed up and claimed the house.

Edith Mmusi had been living in the house all along. She and her sisters had paid for the upkeep all along. But customary law, the so-called law of male primogeniture, said that the youngest male would inherit. He told Edith Mmusi and her sisters that they had to go.

That’s when Edith Mmusi and her sisters had enough. They went to court.

In 2007, the Lower Customary Court ruled in Ramantele’s favor. In 2008, the Higher Customary Court held that the home belonged to all of the children. In 2010, the Customary Court of Appeal argued in favor of Ramantele. Edith Mmusi and her sisters then decided, again, that they’d had enough, and appealed the decision to the High Court.

They were supported by Priti Patel, of the Southern African Litigation Centre, based in Johannesburg, as well as other women’s rights activists across Southern Africa. They were also supported by the earlier Attorney General v Unity Dow, a landmark women’s rights case. Unity Dow found that Botswana law denied citizenship to children born to a Botswana woman married to a non-citizen, while extending citizenship to Botswana men married to non-citizens. Dow then did what women do, she did what Edith Mmusi and her sisters did. She said enough and took action. She took the government to court and, in 1992, won. Her actions opened a door for women in Botswana, across Southern Africa, and beyond.

The story is the actions of Edith Mosadigape Mmusi, Bakhane Moima, Jane Lekoko, Mercy Kedidimetse Ntshekisang, Priti Patel, Unity Dow and thousands upon thousands of women whose names go unrecorded. It was not the rule of law that won today. Women won today: women pushed and pushed again, women said enough, women organized, women persisted. Upon leaving the High Court in Gabarone today, Edith Mmusi said, “It’s a great day for us.” It is indeed a great day for Edith Mmusi and her sisters and her sisters’ sisters across Botswana, across Southern Africa and beyond.

 

(Photo Credit: BBC)

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