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The decriminalisation of same-sex activity in Botswana is a victory. But the struggle for equality continues

The recent court judgment followed years of advocacy by LGBTQ+ people and rights groups. A next step must be laws to protect queer lives – including against hate crimes.

Katlego K Kolanyane-Kesupile
4 July 2019
Rainbow flag, New York City USA 2008.
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Wiki / Ludovic Bertron. Creative Commons Attribution 2.0 Generic. Some rights reserved.

Botswana recently became the latest African nation to decriminalise same-sex sexual activity, much to the elation of LGBTQ+ rights advocates who had pushed for years to reform the country’s colonial era law which criminalised these acts.

On 11 June, the High Court issued a historic ruling in a case challenging the constitutionality of sections of the penal code and how they’ve been interpreted. Before a packed courtroom, Justice Michael Leburu said: “there is nothing reasonable and justifiable [in] discriminating against members of our diversified society”.

Against commonly-heard claims that Africans are not ‘ready’ to accept homosexuality, he continued: “criminalising consensual same sex in private, between adults, is not in the public interest”. There is “no victim”, he said, and “it perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”.

This judgement not only removes a long-standing means of oppression but it also upholds Botswana’s human rights record. It stands in contrast to another recent ruling, by the Kenyan judiciary, which refused to decriminalise consensual same sex activity in March.

Significantly, it follows a two decades-long institutional war between LGBTQ+ rights advocates and successive governments in Botswana. It is a significant part – but not the end – of the struggle for rights and equality in our country. After decriminalising queer lives, must come legislation to protect them including from hate crimes.

A long fight

Internationally, Botswana is often praised as a peaceful nation with a relatively good human rights record. The criminalisation of queer lives stood in stark contrast to this reputation.

When Letsweletse Motshidiemang, a 24-year old student at the University of Botswana, filed his petition with the High Court last year, he added to a slate of cases brought by LGBTQ+ people and organisations against the government to change this.

Botswana inherited its penal code from Britain. By independence in 1966, it had adopted and internalised other colonial imports – including Christianity and the belief that queerness was not part of African sexualities. Along with general social silence around sexuality, this created a climate where LGBTQ+ people were assumed to be criminals

No one, it seemed, was willing to talk about the humanity and dignity of LGBTQ+ people – until the establishment of the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) association, in 1998. At that time, authorities blocked its application to register as an NGO. It was only in 2016, after a long legal battle, that it was allowed to do this.

Since then, the Botswana's highest courts have issued two jugements to allow trans people to change their gender on legal documents. LEGABIBO has played a fundamental role in cultivating and fortifying LGBTQ+ culture and community, and was admitted as amicus curiae (‘friend of the court’) in the most recent, legal case, permitted to submit arguments.

“There is nothing reasonable and justifiable in discriminating against members of our diversified society”

With this month’s ruling, the LGBTQ+ community can be more confident that Botswana’s judiciary is committed to progress. The court’s judgement struck down sections and interpretations of the penal code that criminalised same-sex sexual activity through language prohibiting “carnal knowledge” that is “against the order of nature”, for example.

It overturned the 2003 Kanane case, in which two men were charged with performing such ‘unnatural’ acts, as a legal precedent for LGBTQ+ related matters.

Justice Leburu, the judgement’s author, went into great detail to provide a critical global overview of these issues (going as far as unpacking Bible verses, part of the Indian penal code, and a 1957 report against the criminalisation of homosexuality in the UK) – and also took care to debunk locally-popular claims used to oppress LGBTQ+ people.

The court further considered how the clauses of the penal code under question affected rights to privacy, dignity and security against non-discrimination in general.

Among its affirming statements, it said a person’s “sexual autonomy... to choose his/her sexual partner is an important pillar and an [inseparable] facet of individual liberty” – and: “if the reason or rationale for the law ceases, the law must also cease … sodomy laws therefore deserve archival mummification, or better still, a museum peg”.

Significantly, ahead of general elections in October this year, the ruling Botswana Democratic Party issued a statement supporting the court’s judgement and committing to defending human rights of all people. Duma Boko, leader of the opposition, was a defence lawyer on the 2003 Kanane case that interpreted the law to criminalise same-sex relations.

Does this bode well for further inclusion of LGBTQ+ people and issues going forward, including the possibility of parliamentary action in support of rights and equality? Indeed, there is more work to be done. One step, after the decriminalisation of queer lives, must be legislating means to protect them – including against hate crimes.

These cases are poorly documented though there have been some high-profile attacks against LGBTQ+ people. Last year, a video circulated on Whatsapp of person assumed to be a trans woman being stripped and abused in a club. In 2017, I wrote about alleged abuse and harassment of a trans woman by the police.

While the queer community attends to policy reforms (on gender options on official documents, for example inheritance and marriage) which will allow them to live more rounded lives, the fighting spirit which steered Botswana to this point still burns strong. This diamond rich, ‘democratic jewel’ of Africa is yet to truly sparkle.

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