The Botswana Court of Appeal’s decriminalisation judgment explained
On 29 November 2021, the Botswana Court of Appeal issued a judgment in the case of Attorney General v Motshidiemang. The Court of Appeal held that the Penal Code’s prohibition of consensual sex between partners of the same sex is unconstitutional. This is only the second decision from an apex court in Africa to decriminalise same-sex sex. The previous decision was from the South African Constitutional Court in 1999. On 30 November 2021, the Attorney General of Botswana, Advocate Abraham Keetshabe, issued a statement confirming that the Government will implement the decision of the Court of Appeal. Setting the tone for the region, the Attorney General noted that “it is only through compliance with court decisions that democracy and the rule of law in this country can continue to flourish”. Background to the Judgment In September 2016, a man identifying as gay challenged the constitutionality of sections 164(a) and (c) of the Botswana Penal Code. These sections prohibit anal sex. On 11 June 2019, the High Court declared that sections 164 and 167 of the Penal Code violated the rights to liberty, dignity, privacy and freedom from discrimination in Botswana’s Constitution. This was not the first time that these Penal Code sections were challenged before the Courts. In 2003, in Kanane v the State, the Court of Appeal held that the sections did not violate the Constitution. The State appealed the 2019 decision arguing that the High Court had no power to overturn the Court of Appeal’s decision in the Kanane case. This is known as the principle of stare decisis, which means that courts are bound by their previous judicial decisions and decisions of the courts superior to them. A second basis for the State’s appeal is the principle of separation of powers which requires that the branches of government (executive, legislative, and judicial) are kept separate. The State argued that by declaring a law unconstitutional, the judiciary is interfering with the mandate of Parliament. A third argument raised by the State was that the Penal Code predates the Constitution and is not subject to the prohibition against discrimination. The Court of Appeal’s Judgment The Court of Appeal made several vital findings on both the rights of LGBTQI persons and how the Constitution is to be interpreted. Kirby JP held that the Kanane case was not relevant in the present instance for three reasons: Firstly, the rights violations dealt with by the Court in that matter was not as broad as those in the present case; secondly, the Court which heard Kanane did not have the same evidence before it of the negative impact of the Penal Code provisions on LGTQI persons; and thirdly, much has changed since the Kanane decision, in terms of public opinion, government actions, domestic jurisprudence and international developments. Kirby JP concluded that “the tide has turned in support of gay rights”. The Court was particularly mindful of the new evidence before it of the discriminatory effect of the Penal Code provisions and its breaches of the rights to liberty, dignity, equal protection of the law and privacy. The Constitution prohibits discrimination on several grounds, including “race, tribe, place of origin, political opinions, colour, creed or sex”. The Court held that the category of “sex” should be read to include sexual orientation and gender identity. Addressing the separation of powers, Kirby JP explains that the Constitution provides explicitly for anyone whose rights have been violated to approach the Courts for redress. This remedy recognises that Parliaments are majoritarian, and marginalised groups might have difficulty asserting their views at the parliamentary level. Kirby JP further explains that judges must interrogate laws or policies passed by Parliament and ensure they follow the parameters set by the Constitution. This is part of the checks and balances envisioned by the doctrine of separation of powers. This position was confirmed by the Attorney General in a statement released after the judgment, confirming that the judiciary, in striking down sections 164(a) and (c) of the Penal Code, had carried out its mandate. Kirby JP addresses the State’s argument that the Penal Code is not subject to the Constitution’s non-discrimination provisions. Kirby points out that the Penal Code was “introduced for the people rather than by the people” as a colonial-era piece of legislation. Notably, the Penal Code was amended more recently to make sexual offences gender-neutral. This meant that it has changed significantly since its adoption and ought to be subject to the Constitution. It also means that sections 164(a) and (c) of the Penal Code as they relate to non-consensual acts are no longer needed since the offence of rape is now gender neutral. Kirby JP concluded that “reading the Constitution as a whole, a savings clause cannot validly be construed in such a way as to make fundamental rights unenforceable.” Kirby JP contributes to the interpretation of the right to privacy by reading it with the right to security of a person, both of which are protected under section 3 of the Constitution. Kirby JP concludes that the right to privacy accordingly extends to “protection of the right to make personal choices about one’s lifestyle, choice of partner, or intimate relationships among a host of others.” Kirby JP concludes that sections 164(a) and (c) of the Penal Code “have been rendered unconstitutional by the march of time and the change of circumstances” and are unnecessarily harmful to and stigmatising of gay men. Such sections “incentivise law enforcement agents and others to become key-hole peepers and intruders in private spaces,” which is “neither in the public interest nor in the nature of Batswana”. The decision is a crucial step to diminish the stigma and discrimination experienced by LGBTQI individuals in Botswana. The decision comes at a crucial time since arguments against the recognition of LGBTQI rights continue to hold sway in parts of Africa, leading to legislative proposals that are the exact opposite of the principle of the universality of rights. The Botswana Court of Appeal’s well-reasoned judgment makes an objective contribution to the discourse questioning the validity of criminal intervention in matters of sexual intimacy. The Remaining Areas for Reform The Court of Appeal did not address the constitutionality of section 167 of the Penal Code since the applicant did not explicitly raise this section. Section 167 of the Penal Code criminalises acts of gross indecency, whether performed in public or in private, and whether consensual or not. To the extent that it criminalises consensual sexual activities in private, this section ought to be amended, especially since it indirectly prohibits sexual intimacy between lesbian couples. Kirby JP’s Legacy The judgment’s outcome is not surprising. Written by outgoing Judge President Ian Kirby, the judgment reflects the development of constitutional jurisprudence in Botswana’s apex court over the past decade. Justice Kirby himself has been at the helm of several Court of Appeal decisions. In 2013, in Ramantele v Mmusi, Kirby JP noted that two outstanding characteristics of customary law are its “evolutionary nature and its flexibility”. He concluded that any customary law rule which discriminates against women unfairly based on gender would not be in accordance with “humanity, morality or natural justice” nor with “the principles of justice, equity and good conscience”. In 2015, in Attorney General v Tapela, Kirby JP set aside a Presidential Directive which withheld antiretroviral treatment from non-citizen prisoners with HIV and ordered that all prisoners under the State’s care be given medical treatment. In 2016, in Attorney General v Rammoge, a case relating to the registration of LEGABIBO, Kirby JP emphasised the universality of human rights. He held that “fundamental freedoms are to be enjoyed by every member of every class of society – the rich, the poor, the disadvantaged, citizens and non-citizens, and even criminals and social outcasts, subject only to the public interest and respect for the rights and freedoms of others.” Combined with the Motshidiemang judgment issued on 29 November 2021, these judgements confirm Kirby JP’s position as one of the outstanding jurists of our time. Ultimately, Kirby JP sought to interpret the Botswana Constitution in a manner that does not negate customary law, common law or public opinion but interprets these in line with the values upheld in Botswana’s Constitution and among Batswana of humanity, equity and fairness. Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) were admitted as amicus curiae in the case and represented by Rantao Attorneys. They were supported by the Southern Africa Litigation Centre (SALC).