After the epic fail of Kenya’s judicial system last month in rejecting a plea to declare sections 162 (a) and (c) and section 165 of the country’s Penal Code unconstitutional. The sections similar to those in Botswana criminalise “carnal knowledge against the order of nature,” which is any sexual activity between two or more persons that does not involve the penis penetrating the vagina.
Despite the constitutional similarity with their respective section 164(a) and (c), and section 167, Botswana managed to honour the human rights of all its citizens and decriminalize homosexuality.
The journey to the landmark ruling began earlier this year, when the High Court in Botswana heard the application seeking to decriminalise homosexuality filed by an applicant identified by the initials LM according to reports. Judge Abednico Tafa told the courtroom that a decision would be handed down on June 11 after a one-day hearing.
“These sections… limit me to interact with others who identify in the same way for fear of imprisonment,” said the applicant in documents read by lawyer Gosego Lekgowe in the High Court in Gaborone. “We are not looking for people to agree with homosexuality but to be tolerant,” the applicant added.
At the time Lawyer Lekgowe said public opinion on same-sex relationships had evolved and employment laws now even outlaw discrimination on grounds of sexual orientation.
His sentiments were mirrored by President Mokgweetsi Masisi when he previously addressed a meeting on gender-based violence last year saying there are “many people of same sex relationships in this country who have been violated and have also suffered in silence”.
“Just like other citizens, they deserve to have their rights protected,” added the president.
Read: #Repeal162 is not about the LGBTQI+ community. It is about universal rights and freedoms
The Ruling
Today 11th June 2019, LGBTQI+ community and human rights advocates witnessed the judgement handed down by the honourable Judges Tafa, Leburu and Dube.
According to Gay Star News, the judges agreed unanimously that a person’s right to privacy included the right to choose a life partner and ‘fundamental private choices including those with regards to sexual conduct’.
‘Sexual orientation is not a fashion statement. It’s an important attribute of one’s personality. All people are entitled to autonomy over their sexual expression,’ said Judge Leburu in the ruling.
The full bench ruled Sections 164 and 165 of the Penal Code were discriminatory.
“Public opinion in cases like this is relevant but not decisive. This is about fundamental rights more than the public’s view,” Leburu said. Adding it is “not in the public interest” to criminalize same sex sexual conduct.
It is “not in the public interest” to criminalize same sex sexual conduct.
And just like that #Repeal164 succeeded and the LGBTQI+ community in Botswana can now live free of the fear of persecution or institutional discrimination.
Reactions to the news have been overwhelmingly positive. “This is a historic ruling for lesbian, gay, bisexual and transgender (LGBT) people in Botswana,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. on the organisations website. “It restores privacy, respect and dignity to the country’s LGBT people, and it is a day to celebrate pride, compassion and love. I commend the activists, civil society organizations and community groups that have campaigned so hard for this moment.”
“I hope that this decision reflects a move towards a more humane, compassionate and rights-based approach towards same-sex relations worldwide. It should encourage other countries to repeal unjust laws that criminalize same-sex sexual relations and block people’s access to essential services, including to health care,” she added.
