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Botswana court rebuffs state ban on LGBT group. A turning point for Africa?

The court overturned a government ban on a gay rights lobbying group, ruling it incompatible with free speech and expression. The decision is a rare – but potentially influential – victory for LGBT groups in Africa.

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    Kenyan gay and lesbian activists staged a rare protest against Uganda's increasingly tough stance against homosexuality outside the Uganda High Commission in Nairobi, Kenya, in February.
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A Botswana judge overturned a ban on a gay rights lobbying group Friday, a rare victory for gay rights activists in the southern African country. 

On a continent where gays and lesbians remain severely marginalized, the court's decision could have widespread implications for Africa's emerging gay rights movement. Progress remains slow, but the movement appears to be gaining momentum in small pockets across the continent. 

Human Rights Watch called the ruling in Botswana a "groundbreaking decision" in a statement released Friday.

"The court's ruling is a significant victory for the LGBT community, not only in Botswana but elsewhere in Africa where LGBT groups have faced similar obstacles to registration," said Monica Tabengwa, a LGBT researcher at Human Rights Watch. "The Botswana High Court decision is a milestone in the fight for LGBT people's right to equality under the law."

A group of activists launched the case when it challenged the Home Affairs Ministry's 2012 decision to reject an application to register the country's first gay and lesbian lobbying group – the Lesbians, Gays, and Bisexual of Botswana (LEGABIBO).

Judge Terrence Rannowane said in his verdict that "refusal to register LEGABIBO was not reasonably justifiable under the constitution," Agence France-Presse reports.

Botswana is considered one of Africa's most democratic countries. And although homosexuality, outlawed under the 1965 penal code, is punishable by a maximum prison term of seven years, the judge wrote that:

[T]he applications by LEGABIBO is [sic] not for the registration of their society for the purposes of having same sex relationships, but rather for agitating for legislative reforms so that same sex relationships would be decriminalized. In a democratic society, asking for a particular law to be changed is not a crime, neither is it incompatible with peace welfare and good order.

Thus, wrote the judge, the government's refusal to register the group had "violated the applicants' rights to free of expression, freedom of association and freedom of assembly" under the country's constitution.

LEGABIBO coordinator Caine Youngman told the BBC that the ruling "sent a message to the government, the entire region, and Africa."

"We are overjoyed at the outcome of the case," Mr. Youngman said. "Lesbians, gays and bisexuals have long strived to be able to form an organization which can support them and be their voice on matters that affect them."

Reuters reports the ruling put pressure on the antigay agenda approved by President Ian Khama's government. One of the government's most controversial policies is its refusal to distribute condoms in prison, citing the risks of increased same-sex conduct. Botswana has one of the highest HIV rates in the world.

Same-sex conduct is outlawed in 38 African nations, according to Human Rights Watch. But recently activists have succeeded in turning back anti-LGBT policies in other countries on the continent.

The latest progress comes from Kenya, where in July the country's High Court ordered the National NGO Council to register the Transgender Education and Advocacy organization. Last month, the court allowed transgender activist Audrey Mbugua to change her name on her academic certificates, Reuters reported.

In Uganda, the Constitutional Court annulled the Anti-Homosexuality Act in August. But a new antigay bill is expected to be introduced to the country's parliament in the next two months. 

Activists are calling the new bill more draconian than the law that was repealed in August. It avoids reference to homosexuality and focuses on the existing penal code prohibiting "unnatural acts," which are punishable by a life sentence, the BBC reports.

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