30 March 2011:
Caine Youngman’s Case Set for Hearing as AG Fails to Respond
The groundbreaking case of Caine Youngman versus the Attorney General has been set for hearing at the High Court on the 15th of April 2011, before Justice J. Makhwade.
This development follows the failure of the Attorney General (AG) to respond to Youngman’s affidavit to date.
Youngman’s case was filed at the High Court on the 25th of February 2011 and was subsequently served to the Attorney General (AG) on the 28th of February 2011. The AG however failed to respond to Youngman’s affidavit within the 14 days prescribed by the court.
Through this case, BONELA and the Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo) seek to have the court to rule the conduct proscribed by section 164 (a) and (c) of the Penal Code, Chapter 08:02 of the Laws of Botswana, vague; irrational; undemocratic and uncertain in scope, rendering the offence purportedly created there under contrary to the Rule of Law and therefore contrary to Section 3 and 15 of the Constitution.
Section s. 164 of the Penal Code affords different treatment to different persons because of non-conformity to stereotypes based on sexual orientation in contravention to the prohibition of discrimination on the grounds of sex contained in Section 15 of the Constitution. This contravenes the guarantee of equal protection of the law under Section 3 of the Constitution.
In addition, the ‘offence’ under section s. 164 of the Penal Code prevents persons from associating freely with people of their own choice; from giving expression to their sexual orientation, and therefore contravenes the guarantee of freedom of association contained in section 13 of the Constitution. Thus in denying the applicant the registration of the organization LeGaBiBo, the Registrar of Societies was improperly influenced by irrelevant considerations, more particularly the above mentioned provisions of the Penal Code which discriminated against the applicant and members of LeGabiBo on the basis of sexual orientation, and violated their fundamental rights in contravention of the Constitution