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.
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