Botswana High Court to hear landmark case on decriminalising homosexuality

The LGBTQ community in Botswana is hopeful that the country’s High Court will take a leap forward by decriminalising homosexuality.

On Thursday, 14 March, a full bench of the court will hear a case challenging the constitutionality of sections 164(a), 164(c) and 167 of the Botswana Penal Code. These provisions criminalise same-sex sexual conduct between consenting adults in Botswana and impose a maximum sentence of seven years’ imprisonment.

The case, filed by a gay man identified as LM, was originally set to have been heard in May 2018 but was postponed due to logistical reasons.

The organisation Lesbians, Gays and Bisexuals of Botswana (Legabibo) is admitted as a friend of the court in the proceedings. It will present the judges with the practical and social effects the laws have on the daily lives and experiences of LGBTQ persons.

Particularly, the submission will illustrate how the criminalisation of same-sex sexual conduct limits LGBTQ people’s ability to access basic social services, increases their chances to discrimination, and infringes on their basic human dignity.

“Botswana is a diverse society and the Constitution protects the freedoms and dignity of all persons in Botswana, regardless whether you are gay, lesbian, bisexual transgender or intersex”, commented Anna Mmolai-Chalmers, Legabibo’s CEO.

“Importantly, this has been acknowledged by our very own President, His Excellency Dr Mokgweetsi Masisi, during the commemoration of 16 days of activism against violence on women and children in December 2018,” said Mmolai-Chalmers. “There, he emphasised that ‘there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected’…”

The courts in Botswana have increasingly affirmed the rights of LGBTQ people in a number of previous matters. In 2016, Legabibo won a historic case in the Court of Appeal that saw the government being ordered to officially acknowledge and register the organisation.

In two separate landmark cases, in September and December 2017, the courts also ordered the government to fully recognise the gender identity of transgender individuals.

“Through their sound legal reasoning and constitutional jurisprudence, the Botswana courts have set an example for other courts in the region on the important role the courts can and should play in protecting and promoting human rights of all persons, including marginalised groups,” said Tashwill Esterhuizen, LGBT and Sex Workers Rights Programme Lawyer, at the Southern Africa Litigation Centre (SALC). “We are confident and hopeful that the court will uphold the human rights of the LGBTI community.”