Botswana: Challenging Criminalisation of Same-Sex Sexual Relationships

Salc : Tashwill Esterhuizen

In September 2016, a gay man, filed an application challenging the constitutionality of sections 164(a), 164(c) and 165 of the Botswana Penal Code. These provisions criminalise same-sex sexual acts between consenting persons. The man seeks an order that the continued criminalisation of consensual same-sex sexual relationships violates his constitutional rights, including, the right to equal protection of the law and freedom from discrimination, the right to liberty and the right not to be subjected to inhuman or degrading treatment.

Subsequently, in August 2017, SALC assisted the human rights advocacy group, Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO), to approach the High Court of Botswana to be admitted as amicus curiae or “a friend of the court” on the basis that they have an interest in the case and that LEGABIBO would present factual and legal evidence that will assist the Court in making its determination.  In November 2017, the High Court of Botswana admitted LEGABIBO as “a friend of the court”.

The case was set down for hearing on 14 March 2019.

On Tuesday, 11 June 2019, a full bench of the Botswana High Court issued a ground-breaking judgment, decriminalising same-sex sexual conduct between consenting adults.  In a unanimous decision, Justices A.B Tafa, M. Leburu and J. Dube found that sections 164(a), 164(c), 165 and 167 of the Botswana Penal Code violated the constitutional rights of lesbian, gay, bisexual and transgender persons to dignity, liberty, privacy and equality. The High Court declared sections 164(a), 164(c) and 165 of the Penal Code unconstitutional. These sections prohibit carnal knowledge of a person against the order of nature and attract a term of imprisonment of 7 years. In relation to section 167 of the Penal Code, the Court held that the offence of gross indecency was unconstitutional to the extent that it applied to acts committed in private, and accordingly severed the word ‘private’ from the provision.

Fact Sheet

Booklet on the impact of law which criminalise same-sex relationships

Botswana High Court judgment