Metro Weekly

Botswana’s president promises to implement court ruling decriminalizing homosexuality

Meeting with LGBTQ advocates, Mokgweetsi Masisi acknowledged the decision to appeal the high court's ruling had been politically motivated.

Botswanan President Mokgweetsi Masisi – Photo: Jean Marc Ferré/UNCTAD, via Wikimedia.

Botswanan President Mokgweetsi Masisi has promised to fully implement a 2019 court ruling that decriminalized homosexuality, two months after his government lost an appeal seeking to overturn the decision.

Masisi invited LGBTQ leaders to his office on Monday to reassure them that he would respect the court’s decision going forward.

We have just had a meeting with representatives of LEGABIBO,” he tweeted, referring to a prominent Botswanan LGBTQ advocacy group Lesbians, Gays and Bisexuals of Botswana. “I have assured them that my Government will fully implement the Court of Appeal’s decision and also affirmed that their rights will be protected.”

He also insisted during the meeting that practical political concerns had motivated the government’s decision to appeal the 2019 ruling, rather than outright animus towards the LGBTQ community.

“We won the elections in 2019, and one of our core promises was enhancing inclusion,” he said, according to the South African online news website News24. “As you know, we are living in a pretty conservative society, and any serious politician will not risk such a controversy at election time except to make a promise he will enhance inclusion.”

Masisi also said he believed the appeal allowed Botswana’s people to fully debate the issue of decriminalizing same-sex relations.

Under Botswana’s penal code adopted in 1965 — like many African nations, based on colonial-era laws imposed by European powers — same-sex relations, or “carnal knowledge of any person against the order of nature” were punishable by up to seven years in prison. Similarly, “acts of gross indecency,” whether in public or private, were punishable by up to two years in prison.

In May 2018, a gay man, “L.M.,” assisted by LEGABIBO, filed a lawsuit against Botswana’s Attorney General, arguing that three sections of the penal code outlawing homosexuality violate the Botswanan Constitution’s guarantee of 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.

The case went up to the High Court of Botswana, which ruled that the sections outlawing homosexuality in the country’s penal code violate the privacy, liberty, and dignity of LGBTQ Botswanans, are discriminatory in nature, and serve no greater public interest.

In that opinion, High Court Judge Michael Elburu wrote that a democratic society “embraces tolerance, diversity, and open-mindedness,” noting that anti-LGBTQ laws are detrimental to the larger society.

“We say the time has come that private, same sexuality must be decriminalized,” Elburu wrote. “It is a variety of human sexuality.”

The country’s attorney general appealed the decision, claiming that the court had erred in its legal analysis. But in November, all five justices on the country’s court of appeal unanimously ruled that criminalizing same-sex relationships was unconstitutional, and upheld the high court’s findings.

“Those sections [of the penal code criminalizing homosexuality] have outlived their usefulness, and serve only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens,” Court of Appeal President Ian Kirby wrote in the ruling.

He noted that LGBTQ citizens, especially gay men, had long lived in “constant fear of discovery or arrest” when expressing “love for their partners” — often leading to depression and suicidal ideation and prompting some to resort to alcohol or drugs to cope with their feelings of isolation or rejection.

The court of appeal’s decision brings Botswana in line with only a handful of other African nations that have decriminalized same-sex relations, including Lesotho, Mozambique, Angola, São Tomé and Príncipe, Cape Verde and Seychelles. South Africa is the only country in Africa that explicitly enshrines gay equality in its constitution, and where same-sex marriage has been legal since 2006.

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