Botswana became the latest country to decriminalize LGBTI individuals Tuesday when the High Court rejected as unconstitutional sections of the penal code that punish same-sex relations with up to seven years in prison. Jubilant activists in the packed courtroom cheered the unanimous decision in the southern African nation. It came less than a month after Kenya’s High Court denied decriminalization of a similar section of its penal code.
The full bench of the High Court of Botswana ruled to rid its country of the draconian colonial code by striking down section 164(a) and (c), and section 167 of the penal code which criminalize same-sex relations, or “carnal knowledge against the order of nature”, and prescribe a prison sentence of up to 7 years for those found guilty.
The court unanimously ruled that the provisions are discriminatory, against public interest and unconstitutional.
In particular judges stated that "a democratic society is one that embraces tolerance, diversity and open-mindedness" as well as highlighting that discrimination serves to hold back not only LGBTIQ people, but society as a whole by stating that "societal inclusion is central to ending poverty and fostering shared prosperity."
“Human dignity is harmed when minority groups are marginalized,” Judge Michael Leburu said as he delivered the judgment, adding that laws that banned gay sex were “discriminatory.”
“Sexual orientation is not a fashion statement,” Judge Leburu added. “It is an important attribute of one’s personality.”
Anna Mmolai-Chalmers, coordinator of Legabibo, said that the verdict would have a tangible impact on LGBTQ individuals' daily life, saying that it would help with access to health and legal services.
"Before we were struggling. People have been hiding," Mmolai-Chalmers told CNN.
"This judgement can make a massive change for our lives. This is what excites me the most. The judgement means so much... The court has upheld our dignity, our privacy, and our liberty... It means freedom," she added.
Human rights lawyer Keikantse Phele called the judgement "a welcome development," adding that there is still "lots of work that needs to be done in terms of access to all services, spaces and development."
As noted by OUTRIGHT in its press release:
With this decision, the court has continued its record of trailblazing recognition of the human rights of LGBTIQ people in the country. In 2014 the High Court ruled that the government had to allow the registration of LEGABIBO, the country’s leading LGBTIQ organization. In 2017, in two separate cases – one concerning a trans man, and the other a trans woman - the High Court ruled that the refusal of the National Registration to change the gender marker of trans people violates their rights to dignity, privacy, freedom of expression, equal protection under the law.
Jessica Stern, Executive Director of OutRight Action International commented:
“Same-sex relations are a crime in around 70 countries. Today that number has decreased by one. This achievement is not only testament to the resilience and perseverance of the LGBTIQ movement in Botswana, but also a source of inspiration for LGBTIIQ movements across the continent and the world where such laws are still in effect. We commend the High Court of Botswana for upholding international human rights standards and taking this historic decision, and urge authorities in Botswana to swiftly take the necessary steps to ensure full implementation of the ruling, so that it translates into real change for LGBTQ people.”
With this ruling Botswana joins Angola, Mozambique, India, Trinidad and Tobago and other countries around the world which have also recently struck down similar colonial-era laws. Unfortunately, there are numerous countries which still maintain this discriminatory colonial-era relic, including places such as Singapore, Sri Lanka, Uganda and, disappointingly also Kenya, where the High Court ruled last month to maintain its barbaric law.
Melanie Nathan of African HRC:
I commend all the courageous activists who worked so hard and risked so much during the arduous process that led to this perfect ruling. The Botswana Court was spot on - with unanimity much appreciated. We can only hope that this will inspire more paths to decriminalization on the continent. The right to one's human sexuality and gender identity could not be more basic and more critical to the order of human rights. Criminalization has given license to violence and persecution. Untold numbers of LGBTQI people continue to suffer such persecution. At African HRC we continue to work with the individuals so harshly impacted. This has caused migration and exile for many LGBTQI individuals from many African countries. While change is slow, the movement around the continent is growing, as such victories spur on faith in the outcomes.