What’s happening in Botswana?
It’s a big day for the LGBTQ community of Botswana – the country’s High Court has ruled in favour of decriminalising homosexuality.
While there are examples of same-sex relationships being accepted by the people of Botswana throughout the centuries, Botswana was colonised by the British in 1885, and along with the legal system established by the British, came the anti-sodomy laws of that time, making homosexuality illegal.
The criminalisation of homosexuality formed part of the penal code of Botswana. While convictions were rare, the punishment was up to seven years imprisonment.
While there is some protection against discrimination on the basis of sexual orientation – under the Employment Act 2010 – there is no legal recognition of same-sex relationships.
The fight for decriminalisation
A student at the University of Botswana has been the lead plaintiff in a case to legalise homosexuality in Botswana.
LEGABIBO – Lesbians, Gays and Bisexuals of Botswana – is the country’s main LGBTQ advocacy group, and in 2017, LEGABIBO successfully applied to join the case as a friend of the court.
The lawsuit sought to declare Section 164(a) and 167 of Botswana’s Penal Code unconstitutional because “they interfere with his [the student’s] fundamental right to liberty, freedom of privacy, as well as his right to use his body as he sees fit.” However, the Deputy Attorney General, on behalf of the Government, argued that these sections are constitutional because they prohibit certain sexual acts, which may be conducted by those of all sexual orientations, whether heterosexual or homosexual, and that therefore these laws don’t discriminate based on sexual orientation.
Initially, the High Court of Botswana was supposed to hear the case in March 2018. However, in February 2018, the Deputy Attorney General asked for more time to respond to the plaintiffs’ claims. Allowing the Deputy Attorney General’s request, the High Court moved the hearing to 31 May 2018. The case was then postponed again and the hearing was re-scheduled for 14 March 2019.
Botswana has been a socially conservative country, and there has been little visibility or acceptance of LGBTQ people. This does appear to be changing, with politicians beginning to make positive statements, and opinion polls showing that younger people in Botswana are more accepting of the LGBTQ community.
The legal outcome
The BBC reports that after three judges came to the decision unanimously, Judge Michael Elburu delivered the verdict on 11 June.
“Human dignity is harmed when minority groups are marginalised,” he said.
He labelled laws banning gay sex as “discriminatory” and said: “Sexual orientation is not a fashion statement. It is an important attribute of one’s personality.”