(Blogmensgo, gay blog of June 12, 2019) The Botswana High Court in Gaborone (i.e. the Supreme Court) has declared the articles of the Penal Code that punish consensual homosexual relationships between adults to be unconstitutional, discriminatory and against the public interest. The immediate consequence of the judgment of June 11, 2019, unanimously delivered by a jury presided by Judge Michael Leburu, is that sexual relations between gays and lesbians will no longer be punished. At the same time, the judgment requires the amendment of legal texts considered unconstitutional.
The High Court was seized in March 2018 by a student of Botswana University named Letsweletse Motshidiemang, who claimed that the 1965 Criminal Code, which had not abolished the homophobic laws from Victorian times, should no longer be applicable in its current form because Botswana society has changed and homosexuality is more widely accepted today. The plaintiff was heard in mid-March 2019.
His motion was supported by President Mokgweetsi Masisi in November 2018 after a transgender woman was murdered. The President said that LGBTI people, “just like other citizens, [...] have a right to protection.” Opposition leader Duma Boko said he was in favor of LGBT rights as well.
The penal code in force to date sentenced anyone committing carnal acts against nature with another person or with an animal (Art. 164) to seven years imprisonment. Acts of gross indecency in the private or public sphere (Art. 167) were punishable by up to two years imprisonment.
Prior to this ruling in June 2019, three consecutive steps had already led Botswana towards better acceptance of LGBT individuals.
- Since 2010, the new Labor Code has prohibited employers from terminating an employment contract on the grounds of a person’s sexual orientation.
- In 2014, the High Court required the government to approve the Botswana Lesbian, Gay and Bisexual Association (Legabibo).
- Since 2017, two judgments have facilitated the efforts of transsexual people to change gender on identity documents.
The following video by Legabibo explains in six minutes the necessity and challenges of decriminalizing homosexual relations in Botswana:
The judges in Gaborone justified their ruling by stating that the homophobic provisions of the penal code were not intended to protect the population, but rather punished part of the population by depriving it of its fundamental rights.
What compelling public interest is there necessitating such a law? There is no victim. [...] The state cannot be sheriff in people's bedrooms
Michael Leburu, Judge at the Supreme Court of Botswana
The judgment also states that social heteronormativity should not override the right of people – including LGBT persons – to privacy, access to health services and human dignity in general.
All human rights and LGBT organizations welcomed this judicial victory and recalled that much remains to be done before full equality is achieved in Botswana. Legabibo coordinator Anna Mmolai-Chalmers highlighted the positive impact of the judgment on access to health and legal services.
Frank-S / MensGo