By: Ofentse Seanego
The Botswana Court of Appeal has decriminalised consensual sex between same-sex partners in the country.
The judgement was delivered on Monday by Judge President Ian Kirby. In the judgement, Kirby, along with 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 based on sexual orientation, which falls within the prohibited ground of discrimination of ‘sex’.
The organisation Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO) welcomed the judgment after providing evidence on how laws criminalising consensual same-sex sexual relationships perpetuate and increase stigma and discrimination, reinforcing existing societal prejudice and profoundly impairing LGBTI persons’ fundamental dignity.
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Caine Youngman, Head of Policy and Legal Advocacy, LEGABIBO, said 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.
“For me to have this judgement in my lifetime is an important milestone, a relief, and an indication that people’s 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,” Youngman said.
LEGABIBO CEO Thato Moruti added that the judgment was a win in ascertaining the liberty, privacy, and dignity of the LGBTIQ persons in Botswana. The judgment sets precedence for the world at large.
“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,” said Moruti.
Executive Director of the Southern Africa Litigation Centre Anneke Meerkotter said the decision comes at a critical time.
“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,” she said.
