On June 11, judges voted unanimously in favour of changing Section 164 of Botswana’s penal code, which punishes anal and oral sex by up to seven years in prison. LEGABIBO sought to have the section repealed before the full bench of the High Court, on the practical effect and social impact that sections 164(a), 164(c) and 167 of the Penal Code had on the lives of LGBT persons, including how it limits their ability to access basic services and infringes on their human dignity. Decriminalisation of same-sex sexual activities is an important step towards advancing the diversity and promotion of human rights of the Botswana nation.
A full bench, sitting before the Honourable Judge A.B Tafa, the Honourable Judge M. Leburu and the Honourable Judge J. Dube ruled that the sections, that argued that it was in the public interest to criminalise homosexuality “did not pass constitutional muster.” The constitutionality of sections 164(a), 164(c) and 165 in the judges’ views impair the applicant’s right to dignity, privacy, and liberty, and lastly that the prohibitions are discriminatory in effect and to penalise people for who they are would be disrespectful to them and human rights.
A democratic nation is one that embraces tolerance, diversity, and open mindedness… societal inclusion is central to ending poverty and fostering shared prosperity.” Sexual orientation is not a fashion statement. It’s an important attribute of one’s personality. All people are entitled to autonomy over their sexual expression.” Botswana’s court had previously held a ruling from the Kanane decision of 2003, which upheld the criminalisation of homosexuality, the court sited however, that the ruling “left an open window” that decriminalisation could be allowed when the time was right.
In many other other African states, this is still a reality that, same-sex consensual conduct is heavily policed. Angola is one of the few that also decriminalised in January 2019. Other states such as Mozambique quietly removed anti-gay laws in 2015 and Sao Tome and Cape Verde also abolished the draconian laws that criminalised gay relations.
The state of the Zimbabwean community with regards to decriminalisation is one yet to be tabled, if at all. Prevailing public opinion is not decisive in dealing with human rights in their totality. The assumption is public opinion is usually right and dictates the law however, this has led to the marginalisation of groups, not just sexual minorities but also women and the disabled.
Botswana’s victory gives hope that anything is possible.
In November 2017, the Court ordered that the organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) be admitted as amicus curiae in the proceedings. LEGABIBO is a human rights organisation and seeks to promote and advance the interests of gay, lesbian, bisexual and transgender persons in Botswana. The organisation is concerned with human rights, public health issues, such as HIV, and seeks to enable members of the community to protect themselves and others from violations of human rights and to live a life with dignity.
GALZ: An association of LGBTI People in Zimbabwe congratulates LEGABIBO and the Botswana LGBTI community on this outstanding victory for their country and Africa at large.