Metro Weekly

Botswana High Court strikes down laws banning same-sex relations

On heels of two trans rights cases, high court finds colonial-era law penalizing homosexuality unconstitutional

Botswanans celebrate the high court’s decision decriminalizing homosexuality. – Photo: LEGABIBO, via Facebook.

On Tuesday, the High Court of Botswana unanimously ruled to strike down parts of the country’s penal code that criminalize homosexuality and same-sex relations.

The three sections of the code that were struck down included a prohibition on “carnal knowledge of any person against the order of nature,” which carried a maximum sentence of seven years in prison, and a prohibition on “acts of gross indecency” — whether in public or private — which carried a maximum sentence of two years in prison.

The high court ruled that the sections in question violate the privacy, liberty, and dignity of LGBTQ Botswanans, are discriminatory, and serve no public interest.

“A democratic society is one that embraces tolerance, diversity, and open-mindedness,” Justice Michael Elburu said, noting that discriminatory laws are not only detrimental to LGBTQ people, but to the larger society, according to CNN.

“Societal inclusion is central to ending poverty and fostering shared prosperity,” he added.

This marks the fourth such pro-LGBTQ ruling from the High Court of Botswana in recent years.

In 2014, the court ordered the government to allow the registration of LEGABIBO, the country’s leading LGBTIQ organization.

In 2017, the court found, in two separate cases — one involving a transgender man, and the other a transgender woman — that the refusal of the National Registration to change the gender marker of trans individuals violates their rights to dignity, privacy, freedom of expression, and equal protection under the law.

The government has the option of appealing the ruling, although President Mokgweetsi Masisi has previously said that all people in Botswana, including people in same-sex relationships, deserve to have their rights protected.

“The High Court recognized that Botswana’s law and policies need to protect the rights of all, regardless of sexual orientation,” Neela Ghoshal, a senior LGBT rights researcher at Human Rights Watch, said in a statement. “The court ruling is a victory both for LGBT people in Botswana and for LGBT people and their advocates throughout Africa.”

The challenge to the law began in May 2018, when a gay man, known only as “L.M.,” filed a lawsuit against Botswana’s Attorney General arguing that the three sections of the penal code outlawing homosexuality violate equal protection of the law, the right to freedom from discrimination, the right to liberty, and the right not to be subjected to inhumane or degrading treatment under the Botswana Constitution of 1966.

The court’s decision comes on the heels of a decision in May by the Kenyan Supreme Court that upheld Kenya’s laws penalizing homosexuality.

The court ruled that decriminalizing same-sex relations could lead to the legalization of same-sex marriage, which is contrary to the values on which the country’s constitution was founded.

By decriminalizing homosexuality, Botswana joins the trend of African countries overturning colonial-era anti-LGBTQ laws, including Angola, Mozambique, São Tomé and Príncipe, Cape Verde and the Seychelles. Advocates hope that other countries where same-sex relations are outlawed, particularly those in Africa, will follow suit.

“This victory is a historic landmark for LGBTQ people in Botswana and a positive step toward the inclusion of our community across Africa and the world,” Tashwill Esterhuizen, a 2017 HRC Global Innovator who led the Southern Africa Litigation Centre’s efforts to litigate this case, said in a statement. “

Jessica Stern, the executive director of OutRight Action International, also praised the court’s decision.

“Same-sex relations are a crime in around 70 countries. Today that number has decreased by one,” Stern said in a statement. “This achievement is not only testament to the resilience and perseverance of the LGBTIQ movement in Botswana, but also a source of inspiration for LGBTIQ movements across the continent and the world where such laws are still in effect. We commend the High Court of Botswana for upholding international human rights standards and taking this historic decision, and urge authorities in Botswana to swiftly take the necessary steps to ensure full implementation of the ruling, so that it translates into real change for LGBTQ people.”

Richard Grenell, the U.S. Ambassador to Germany, and head of the Trump administration’s campaign to decriminalize homosexuality abroad, commented on the decision on his Twitter account.

“[T]he UN Declaration of Human Rights is clear that criminalizing homosexuality is in direct violation of UN principles. This is good news,” Grenell tweeted.

Katlego K. Kolanyane-Kesupile, a trans “ARTivist” from Botswana, who serves as an OutRight Action International Religion Fellow, praised the justices for their decision.

“I’m happy to see that the courts of law in Botswana have opted to support the dignity of Botswana by removing these clauses which render people criminals merely for whom they love,” Kolanyane-Kesupile said. “I am proud that this happened in my lifetime, and look forward to educating Botswana to fully understand what this means to current and future generations of LGBTIQ people and their families. Justice will always shine brighter in the light than hate.”

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