For many people working in civil society around the world, the threat of a shrinking civic space is very real. It is becoming harder and harder to work effectively due to factors such as decreased funding and increased surveillance. In Africa, one of the main areas of concern is over legislation that seeks to regulate NGOs’ operation – and laws like this are becoming disturbingly commonplace.
In Uganda, activists criticised the adoption of a new law last week which precludes the registration of any organisation that has objectives which would be “prejudicial to the security of Uganda and to the interests of Uganda and the dignity of Ugandans”. Their concern was that the vague wording of this provision creates the potential for abuse, as officials would be empowered to deny registration to organisations which they believe may be contrary to public morality, such as those working for recognition of sexual minorities’ rights.
The danger with regulation of civil society laws is that they can place the control over the ambit of civil society’s work within the purview of those in power, which allows them to control advocacy that may challenge their belief systems or political power – and this is incredibly stifling to the possibility of a vibrant civil society, a fundamental element of democratic societies.
However, in all this gloom, an encouraging judgment was delivered by the Court of Appeal in Botswana last week. On 16 March, the court ordered that the Registrar of Societies register the civil society grouping, Lesbians, Gays and Bisexuals of Botswana (Legabibo).
Legabibo, a group seeking to promote and advocate for rights of gay and lesbian individuals, applied for registration in 2012 as required by the Societies Act.
The latter legislation empowers the Registrar to refuse registration of organisations that he believes would be used for an “unlawful purpose” or has objectives “incompatible with peace, welfare, or good order in Botswana”. Although not specifying which of these criteria he had applied, the Registrar previously informed Legabibo that its application was unsuccessful, as the country’s constitution did not recognise homosexuality. Therefore, a group seeking to protect the rights of that vulnerable group would not be permitted.
In terms of the Societies Act, any member of a group not registered under the Act faces a fine or imprisonment for up to three years. The refusal was a great disappointment for the individual applicants, as it curtailed any hope they had of legally advocating for the decriminalisation of consensual same-sex sexual acts – still illegal in Botswana – and for campaigning for a public health and legal system that recognised the need to protect vulnerable LGBT individuals.
Twenty of those individuals who had sought to register Legabibo then approached the courts, arguing that the refusal was irrational and unlawful as it is infringed a number of their constitutionally protected rights, including the right to freedom of assembly and association.
In a series of encouraging judgments, the High Court and Court of Appeal both affirmed the right of freedom of association and explained why it was so fundamental for the achievement of true democracy. In last week’s judgment, Judge Kirby rejected the Attorney-General’s argument that because same-sex sexual acts are still criminalised in Botswana, any group seeking to advocate for the rights of LGBT individuals would be encouraging the commission of criminal acts. The court dismissed this reasoning, and upheld the democratic right of individuals to lobby politically for legal reform.
This judgment confirms that considerations of “public morality” cannot play a role in determining the registration of an organisation, and that there is nothing unlawful about lobbying for the decriminalisation of practices that are, themselves, currently unlawful. The court further emphasised that while certain sexual acts might be prohibited, it is not, and never has been, a crime to be homosexual. This is a critical distinction to make, as it creates the space for LGBT people to come into public spaces to fight for their rights without fear of arrest.
Notably, Botswana’s legal provisions are similar to those in many other African countries and the same legal reasoning should apply.
Judge Kirby compared Legabibo’s objectives to those of groups advocating for the removal of the death penalty or for the legalisation of abortion. This was a useful comparison, as he explained that no one assumes that advocates for those causes actually commit murder or abortions merely by lobbying for changes in the law. The comparison also highlighted the role advocacy plays in a democracy, by illustrating how it enables society to move forward through the change of opinions about previous practices and beliefs.
In the judgment, the Court of Appeal referred to a Kenyan judgment also involving the registration of an LGBT organisation where the Judge held that “the State is restricted from determining which convictions and moral judgments are tolerable” and that because the right to freedom of association is guaranteed to everyone “it does not matter if the views of certain groups or related associations are unpopular or unacceptable”.
The Kenyan court pointed out that “if only people with views that are popular are allowed to associate with others, then the room within which to have rich dialogue and disagree with government and others in society would be limited”.
What these judgments from Botswana and Kenya do – beyond upholding the rights of the LGBT individuals who initiated the litigation – is underline the true function of civil society. The responsibility of NGOs is to hold up a mirror to governments, showing them where they are falling short of their obligations and responsibilities. Legislation which allows governments to determine the scope of civil society’s work means that, rather than looking at themselves squarely in those mirrors to address their shortcomings, governments are able to choose to look only into those that reflect an image they wish to see.
In order for southern African democracies to thrive, we need more brave activists like those in the Legabibo case, and more principled judges like Judge Kirby to ensure that the right to freedom of association is fully respected and promoted. DM
Caroline James is a freedom of expression lawyer at the Southern Africa Litigation Centre.
Photo courtesy of Lesbians, Gays And Bisexuals Of Botswana.
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