Justice Dingake Implores Judges to Reject the Tyranny of Majority

  •  It is always the duty of judges to breathe life into the constitution
  • Interpret constitution to save humanity from the scourge of indignity

TEFO PHEAGE

A law expert and judge, Oagile Key Dingake has implored his counterparts in the judiciary to free themselves from the tyranny of the majority saying it is always the duty of judges to breathe life into the constitution and to effect the promise of the constitution by among other things rejecting the tyranny of the majority.

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Our constitution, he said, commands that it be interpreted in a manner that saves humanity from the scourge of indignity and with a sense of the future and to secure the rights of generations yet to be born.

Dingake who was giving a speech recently on decriminalization of same sex sexual relationships in Botswana at the 4th caribbean judges forum on HIV, Human Rights and the Law applauded the Botswana Court of Appeal for decriminalizing homosexuality saying it is a solid contribution to a rights-based society in which the right to be different is recognized and even celebrated.

“This judgement will always stand out in history as signaling an important shift in the way a constitution should be read, understood and interpreted in Botswana, Dingake said.
“It was by all accounts a revolutionary judgment that advanced the rights of sexual minorities. This judgment vindicates my central thesis that in the hands of men and women of goodwill, integrity and learning society is much safer and much more protected.”

According to him, the decision is important in that it reinforces the need to respect our diversity and plurality. “Essentially the Court affirmed that everyone has a right to be different. In my respectful view, the right to be different is a rejection of the notion that heterosexuality is normal and same sex love is not. In a society that subscribes to rights what would be normal in such society is the difference,” he stated.

The Motshidiemang case, Dingake said, helped in advancing freedom and liberty in Botswana. “In a stroke of a pen, the Court ended the long and tortuous road to equality of gay people,” he noted.

The truth of the matter, according to Dingake, is that our constitution never denied gay persons the rights to equality and the right not to be discriminated against. Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices it exercised. They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by public opinion, which was not right, and they chose not to read: sexual orientation, into section 15 of the constitution, which they could have done.”

Said Dingake: “Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanane, and thankfully given effect to in Motshediemang. A big lesson here is the often-overlooked fact: judges’ matter! Who the judge is may be life changing in any given matter.”