29 November 2021, Gaborone – Today, the Botswana Court of Appeal, through Judge President Ian Kirby, issued a monumental judgment to decriminalise consensual sex between same-sex partners. In a unanimous decision, Justices Kirby, Ranowane, Lesetedi, Gaongalelwe and Garekwe, found that the Penal Code provisions [sections 164(a) and (c)] violated the right to privacy (section 9 of the Constitution), the right to liberty, security of person and equal protection under the law (section 3 of the Constitution) and the right to freedom from discrimination (section 15 of the Constitution).
The Court held that the Penal Code provisions discriminated against LGBTI persons on the basis of sexual orientation, which falls within the prohibited ground of discrimination of ‘sex’. This finding is important since most constitutions do not explicitly prohibit discrimination based on sexual orientation and gender identity. Still, courts have progressively read the prohibited grounds of discrimination to include sexual orientation and gender identity. 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.
The organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) provided evidence to the Court on how laws criminalising consensual same-sex sexual relationships perpetuate and increase stigma and discrimination, reinforcing already existing societal prejudice and profoundly impairing LGBTI persons’ fundamental dignity. The evidence showed that criminalisation of consensual same-sex sexual relationships isolates LGBTI persons from essential health services and access to care, thereby jeopardising national HIV prevention efforts and hindering public health and that LGBTI persons in Botswana experience higher levels of violence than the general population. This decision is a crucial step to ameliorate the stigma and discrimination experienced by LGBTI individuals in Botswana.
The decision also lays to rest the argument raised two decades ago in the Kanane judgment that public opinion wants the offending sections to remain by declaring that “there can be no discernible public interest purpose in the continued existence of sections 164(a) and 164(c) of the Penal Code”.
The Court concluded that the Penal Code provisions prohibiting sex between same-sex partners, was “rendered unconstitutional by the march of time and change of circumstances”. Since the offence only served to stigmatise gay men and has a harmful effect on them, the Court held that the sections “have outlived their usefulness, and serve only to incentivise law enforcement agents and others to become key-hole peepers and intruders into the private space of citizens.”
“For me to have this judgement in my lifetime is an important milestone, a relief and indication that peoples civil liberties are taken seriously. I hope Parliament of Botswana will learn from the judiciary and take the necessary steps to institute legislation that protects the LGBTI community from any kind of violence,” Caine Youngman, Head of Policy and Legal Advocacy, LEGABIBO.
“Today is a momentous day in history, a victorious win in ascertaining liberty, privacy and dignity of the LGBTIQ persons in Botswana and definitely, this judgment sets precedence for the world at large”, says LEGABIBO CEO Thato Moruti. “Moreover, a new dawn for better education and awareness about the LGBTIQ issues. I anticipate that more engagement with various arms of government will also set a trajectory towards a more inclusive and diverse nation.”
“This decision comes at a critical time”, says Anneke Meerkotter, Executive Director of the Southern Africa Litigation Centre. “Arguments against the recognition of LGBTI rights continue to hold sway in parts of Africa, leading to legislative proposals that are an antithesis to the principle of the universality of rights. The Botswana Court of Appeal’s well-reasoned judgment makes an objective contribution to the discourse around the validity of criminal intervention in matters of sexual intimacy.”
Issued by the Southern Africa Litigation Centre and Lesbians, Gays and Bisexuals of Botswana (LEGABIBO)
