Court of Appeals Upholds Decriminalization of Same-Sex Relations in Botswana

Botswana decriminalized same-sex relations in 2019, and this week, the Court of Appeals of Botswana has dismissed the State's appeal.

LGBTQ+ News Headline News Triston Brewer

This article was published on November 28th, 2021

On 11 June 2019, the High Court of Botswana ruled unanimously to strike down section 164(a) and (c), and section 167 of the Penal Code which criminalized same-sex relations, referred to as relics inherited from colonial times. Judges ruled that the provisions are discriminatory, noting that “a democratic society is one that embraces tolerance, diversity and open-mindedness” and that “societal inclusion is central to ending poverty and fostering shared prosperity.” The State ultimately moved to appeal the court’s decision.

Photo credit: Tshekiso Tebalo AFP / Getty Images

The Court of Appeals dismissed the challenge today, with the judgment highlighting that “there can be no discernible public interest in the continued existence of [these] sections of the Penal Code. Five justices unanimously ruled sections of the Batswana Penal Code that criminalize homosexuality with up to seven years in prison “violated the right to privacy … the right to liberty, security of person and equal protection under the law … and the right to freedom from discrimination” under the country’s constitution.”

They have been rendered unconstitutional by the march of time and change of circumstances.” The judgment goes further, noting these sections “serve only to stigmatize” and enable law enforcement to intrude into the private lives of citizens, which “is neither in the public interest, nor in the nature of Botswana.” Acting Executive Director of OutRight Action International, Maria Sjödin, commented:

“The courts in Botswana have been trailblazers of progress for years, ruling in 2014 that the state has to register an LGBTIQ organization and in 2019 ruling to shed relics of British colonial rule and decriminalize same-sex relations. The Court of Appeals has continued that trend today, stating unequivocally that criminalization of same-sex relations is unconstitutional, outdated and ‘not in the nature of Botswana’, and recognizing that LGBTIQ people are citizens of Botswana, deserving of protection, not stigmatization, by their State.”

Currently, 67 countries continue to explicitly criminalize same-sex relations, with several others using laws on vagrancy, prostitution, morality, and others to criminalize same-sex relations. Over the last couple of years, Bhutan and Gabon have also decriminalized same-sex relations although a backlash is presently on the rise with enhanced criminalization of same-sex relations being proposed in Ghana. In March 2020, the High Court in Singapore dismissed challenges to its ban on same-sex relations, and in May 2019 the High Court in Kenya ruled to maintain a colonial era ban on same-sex relations.

Lesbians, Gays and Bisexuals of Botswana, which challenged the criminalization law with the backing of the Southern Africa Litigation Center, applauded Monday’s ruling and issued a statement through their CEO Thato Moruti:

“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 judgement 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.”

Other organizations also lent their voices to the decision, with Pan Africa ILGA commenting via social media that Monday was a “beautiful day” in Botswana, and UNAIDS describing the ruling as “a great win for human rights.”

Conclusion

As more countries worldwide continue to update and redefine their laws regarding the rights of the LGBTQ+ community, HomoCulture will continue to keep our readers informed of the latest information. 

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