7 August 2023
By: Bradley Fortuin and Matlhogonolo Samsam
Country’s Council of Churches applauded 2019 decriminalization ruling.
Botswana is considered a secular state and all people have equal access to religious organizations and institutions. There are three Christian umbrella bodies in Botswana — being the Botswana Council of Churches, the Evangelical Fellowship of Botswana and Organization of African Instituted Churches — all of whom have great influence io public perceptions and attitudes towards various social and rights-based issues.
Faith in action, embracing diversity!
The Botswana Council of Churches, including the Roman Catholic Church, Anglican Church, Lutheran Church and the Methodist Church, in 2019 released a statement applauding the Court of Appeal in decriminalizing consensual same-sex sex in the country. In the statement, the council encouraged its members to abide by the judgment and not discriminate against anyone who identifies as LGBTIQ+. The BCC has been intentional about their views on LGBTIQ+ rights and has continually engaged with queer organizations to get human rights literacy. It is safe to say that they are friends of LGBTIQ+ persons.
Religious discrimination: A barrier to LGBTIQ+ persons‘ rights in Botswana
Recently, there has been a visible increase in anti-LGBTIQ+ rights rhetoric by the EFB and its members, who include politicians. The EFB has been imposing its assumed Christian values on to the nation — a nation that is diverse in beliefs, cultures and identities. Discriminatory behavior towards the LGBTIQ+ community is on the rise, with the EFB being a notable obstacle to progress towards equality. The constitution does provide for freedom of religion and religious practices, but to what extent does religious practices become incitement of violence and hate towards the LGBTIQ+ community?
On Nov. 29, 2021, the Botswana Court of Appeal upheld the decision by the High Court to decriminalize consensual same-sex sexual acts in the country. Beyond this, it affirmed LGBTIQ+ people’s rights to liberty, dignity, privacy, equal protection before the law and body autonomy, as enshrined in the constitution. When the Parliament of Botswana assumed its July/August 2023 session, a bill to amend Sections 164 (a) and (c) of the Penal Code was tabled by the Minister of Defense, Justice and Security, Mr. Ronald Shamukuni. These sections criminalized carnal knowledge against the order of nature and have since been struck down by the High Court and the Court of Appeal in front of a total of eight judges. The procedure to table the bill in Parliament has been said to be standard practice and will in no way go against the orders of the court.
The church threatening Parliament and parliamentarians endanger the rule of law and create an imbalance in the separation of powers by encouraging Parliament to go against the decision of the Court of Appeal. The courts and judges are — and must be — independent of Parliament and the government. The judiciary has already held sections 164 (a) and (c) of the Penal Code to be unconstitutional and ordered it to be repealed. Within the legal framework, Parliament must now adhere to the court’s order and repeal these offences. For the Legislature to attempt or to go against the court’s order shows ignorance of the law, undermining of the Judiciary and disregard for vulnerable and marginalized groups.
The rise of anti-LGBTIQ+ movement in Botswana
Since the motion of intention to table the bill, there has been a stir and public outcry regarding LGBTIQ+ rights and liberties led by the anti-rights movement. The EFB and some politicians have been against the protection of LGBTIQ+ people and increasingly engage in discriminatory behavior against the community. The church, in all its might and power rallied and organized demonstrators to march against the amendment bill by Parliament. There have been three demonstrations in the last four weeks across the country.
Why is the EFB and some politicians opposed to LGBTIQ+ rights? Why are they a barrier to progress towards equality and inclusion of a group that has been vulnerable and marginalized for a long time in Botswana? Why is the EFB vehemently advocating for the recriminalization of LGBTIQ+ rights?
In its messaging, the EFB has been consistent about their message — that LGBTIQ+ rights have no place in Botswana. Amidst this messaging, with the influence that the church has, and the number of followers in the EFB denominations, this card has been used to persuade and manipulate politicians to reject the amendment bill if they want to survive politically.
Botswana goes for its general elections in 2024, and now is the perfect time to start campaigning — or de-campaigning — for politicians. Several politicians are now at the mercy of the EFB and voting for LGBTIQ+ rights is feared to be political suicide. When, however, politicians and the church are willing to rally against the courts, our democracy is at stake.
Avoiding tyranny of the majority
The EFB and some politicians called for the rights of LGBTIQ+ people to be put to a referendum and to have the public decide. By doing so, there is the risk of the majority imposing its will on the people. LGBTIQ+ rights are not a popularity contest and should not be contingent on popular opinion; basic human rights should not be up for debate or subject to the changing whims of the majority as they are not dependent on popular opinion but are inherent to all human beings. LGBTIQ+ individuals have historically faced exclusion, discrimination, prejudice and violence and subjecting their rights to a referendum perpetuates this vulnerability. It undermines the principles of dignity, liberty and equal protection under the law, entrenched in our constitution and upheld by our courts. The views of the EFB are not the views of Batswana at large.
In 2016, the Afrobarometer reported that at least 43 percent of Batswana are not opposed to LGBTIQ+, while in its 2021 report, it reported that 50 percent of Batswana are open-minded and unprejudiced to LGBTIQ+ people. The increased acceptance of LGBTIQ+ persons in Botswana reflects that public opinion is in fact not what the church and politicians are assuming.
To promote fairness and equality, religious organizations must understand that they are separated from governmental structures and should refrain from wielding undue influence on legislative issues that impact members of different faiths, beliefs or those who are not religious. The call to deny LGBTIQ+ people their rights because of fundamentalist religious beliefs perpetuates inequality and discrimination and sends the message that certain groups of people are less deserving of rights and protections in Botswana.
Bradley Fortuin is the LGBTIQ+ Program Officer at the Southern Africa Litigation Center and a social justice activist.
Matlhogonolo Samsam is the Media and Community Liaison Lead at Black Queer DocX and a queer feminist working towards the development of an inclusive LBQ+ society.