Advocate Sidney Pilane has said that Parliament of Botswana should be allowed to determine if it is time for sections 164(a), 164(c) and 167 of the Botswana Penal Code be scrapped off.
These provisions criminalise same-sex sexual conduct between consenting adults in Botswana and impose a maximum sentence of seven years imprisonment and advocate Pilane said it would be morally wrong to agree to change these provisions without Parliament involvement.
Advocate Pilane is representing government in a constitutional case before Justices Abednego Tafa, Michael Leburu and Jennifer Dube in which the organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) is admitted as a friend of Court in the proceedings. The human rights advocacy group, LEGABIBO was admitted as amicus curiae (“a friend of the court”) last year.
He told a fully packed court that when Parliament decided to amend the Employment Act so that people are not discriminated against because of their sexuality, it was because Parliament felt it was time such an amendment was made.“When Parliament made such an amendment it was because they found it sufficient enough that it should be done. We can advise Parliament to look into it.
We have to allow Parliament to confidently deal with it. This is because they are close to the people and know better,” Advocate Pilane told the Court. He however admitted that the country is becoming liberal and the world is evolving. He said with time Botswana will become accepting and more tolerant.
He also admitted that people do change but posed a question as to whether they have changed enough to warrant for the change of the law. “Court must be restrained because if not they will make laws and no one will do anything. Parliament has more powers to make the laws,” he said whereupon Justice Tafa chipped in and said it is the responsibility of the courts to ensure that Parliament act within the confines of the Constitution, “We cannot say let us wait for Parliament to act.”
However, Pilane responded, “This court has struck down provisions and I am saying you have to exercise restrain because the court has to also stay in the confines of the law.” He argued that people who are ill- treating those different from them like homosexuals, know nothing about Section 164 of the Penal Code. We are trying to blame the law which we should not, this is a historical socio-cultural thing, he said.
He told the court that the provisions that the Applicants are unhappy about, are about values of the people of this country. He argued that the court has to find evidence that values have changed over the past 15 years. “Let us examine what has changed since the Kanani case of 2004. This court is the right forum to do that. In the Kanani case a Court of Appeal decision, Parliament deals with the law. This is because Court of Appeal remembers the importance of separation of powers. They know Parliament knows better the values of the people of this country.
If Parliament felt that the values have changed or attitudes softened then Parliament would have to decriminalise,” he argued adding that the Applicants have failed to bring such evidence to support their case. In reply Attorney Gosego Lekgowe representing the Applicants argued that government has failed to demonstrate which values they are talking about. He said there is no evidence to that effect. He wondered which public interest the government is protecting. He said moral values are aligned with the Constitution. For his part Tshiamo Rantao also from the Applicants side said the court in the Kanani case left the door open. He said Botswana is not in competition with any country.
He dismissed claims that government has been tolerant of homosexual and has not taken anyone to prison. He said according to the record someone was sent to jail for three (3) years. “In the Kanani case there was a criminal charge. However, in this case the Applicant is saying I do not want to break the law, so the court could assist so that I cannot break the law by striking off the provisions,” argued Rantao.