Caine Youngman and the Lesbians, Gays and Bisexuals of Botswana (LeGaBibo) have decided to withdraw their case suing the Botswana government over the criminalisation of homosexuality to strategize and consult with stakeholders. Because of the significance of this case, more time is needed to “bounce back in a more solid way.”
Youngman and the Lesbians, Gays and Bisexuals of Botswana (LeGaBibo) want to collect additional evidence in their challenge of Section 164 of the Botswana Penal Code which criminalizes sexual conduct between adults of the same gender.
Youngman with the support of LeGaBibo wants Section 164 declared unconstitutional, and repealed on the grounds that it discriminates against persons on the basis of their sexual orientation.
An attorney representing Youngman, Monica Tabengwa, said that the law is a legacy of British colonialism and has since been de-criminalized in Britain. She was speaking at a press briefing in Gaborone on Monday to announce the withdrawal of the case.
“This case has attracted a lot of publicity and interest locally and internationally. Good things have emerged from this goodwill, “she said. Tabengwa explained that there were people willing to offer legal assistance and supporting the case by deposing affidavits to show that Batswana are ready.
“We are proud to announce that our lead counsel in this matter going forward is Advocate Marcus Gilbert, a SA advocate with years of experience in public interest in litigation,” she said.
Tabengwa explained that Gilbert was lead counsel in the case of the South African Coalition of Gays and Lesbians seeking to enforce constitutionally guaranteed rights over a statute that was clearly in contradiction, “she said.
She stressed that countries like Lesotho and Swaziland are observing Botswana to see the outcome of the case. “We know Malawi is violating people’s rights based on their sexual orientation. If we lose, they will go ahead with their violations,” she said.
One of the lawyers representing Youngman, Uyapo Ndadi, said that it is important to get support from Batswana; even some parliamentarians and opinion leaders have wished them well with the case. “We are not giving up on the case. We are only retreating to bounce back in a more solid way,” he said.
Past newspaper reports have stated that in 2005 LeGaBibo attempted to register their association with the registrar of companies but their application was turned down, on the grounds that the Republican constitution does not recognize homosexuals.
The first hearing of the landmark case was heard in April by High Court Judge Zibani Makwade and has stimulated a lot of conversation in Botswana about LGBTI human rights.