The Botswana Government’s relentless, homophobic fight against the rights of the local homosexual community continued at the Court of Appeal in Gaborone this week (October 12, 2021). Following their victory at the High Court in 2019, the local LGBTQI community will face one last hurdle in their quest for constitutional freedom.
The ruling was seen by human rights activists and (in particular) the LGBTQI community as a giant leap towards the end of persecution, fear of arrest and harassment by the police, shaming by healthcare professionals and extortion.
“That stigma often drove men who have sex with men to hide their sexuality behind a façade of heterosexual relationships. This ruling provides some hope for a safer and greater dignity as the need to hide from the law is removed,” one source said following the ruling.
The face of the campaign, Letsweletse Motshidiemang, through his lawyer Gosego Lekgowe successfully took the Government to court in 2019 seeking the High Court to (among other reliefs) declare sections 164(a), (c) and 165 of the Penal Code criminalising homosexual acts between two adults in private as unconstitutional, arguing they violated the right to liberty, privacy, dignity and non-discrimination. Motshidiemang was joined by LGBTQI Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) through their lawyer Tshiamo Rantao. In a unanimous ruling, the three-judge panel found that “Sections 164(a); 164(c) and 165 of the Penal Code are declared ultra vires the Constitution, in that they violate Section 3 (liberty, privacy and dignity); Section 9 (privacy) and Section 15 (discrimination). Under Section 167 of the Penal Code, the word ‘private’, is to be severed and excised therefrom, so as to remove its unconstitutionality from the remaining valid provision.”
The State, through The Attorney General, challenges the decision of the High Court citing (among other reasons) that the High Court erred in finding that “Sections 164(a); 164(b) and 165 of the Penal Code were ultra vires Section 3 of the Constitution of Botswana on the bases stated or any other , and in striking those provisions down.” The State also argues the Court erred in finding that Sections 164(a); 164(b) and 165 of the Penal Code were ultra vires Section 15 of the Constitution of Botswana on the bases stated or any other, and in striking those provisions down.”
Most notably, the State aims to challenge the powers of the High Court to “overrule” the Court of Appeal in the 2003 Kanane vs The State ruling. Utjiwa Kanane had been charged with “committing an unnatural” offence, contrary to section 164(c) of the Penal Code, and committing indecent practices between males, contrary to section 167. The incident, which happened in 1994, also involved British tourist Graham Norrie, who pleaded guilty, paid a fine and left the country. Kanane pleaded not guilty and unsuccessfully challenged the constitutionality of sections 164(c) and 167 of the Botswana Constitution.
The Court of Appeal in the Kanane case found that “No evidence was put before the Court that public opinion in Botswana has changed and developed to the point of society demanding the decriminalisation” of same-sex practices. The 2003 Court of Appeal ruling also found that the fact that the laws in question, amended as recently as 1998, indicated (at the time) that societal attitudes had not changed.
“The legislature, in passing the 1998 Amendment Act, clearly considered its provisions and, as with the effect of the rest of the act, broadened them… I conclude, therefore, that so far from moving towards the liberalisation of sexual conduct by regarding homosexual practices as acceptable conduct, such indications as there are show a hardening of contrary attitude.”
The Court of Appeal said “gay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution.”
However, in its 2019 ruling on the Motshidiemang and Attorney General, LEGABIBO case the High Court found Batswana were more receptive to homosexuals. The High Court also defended its jurisdiction over the matter.
“In the present matter, it is common cause that the applicant’s case is underpinned by Sections 3, 7, 9 and 15 of the Constitution and this gives imprimatur and seal of approval to our exercise of jurisdiction in the present constitutional adjudication and discourse.
In the absence of any clear and specific ouster of the High Court’s jurisdiction on any matter, be it constitutional or not, this court has the necessary jurisdictional potestas and authority to intervene.”
Both Motshidiemang and LEGABIBO have filed their opposition to the Appeal.
Oh, dear! Nothing in our beloved country is ever straightforward. When news broke of the liberalisation of homosexuality back in 2019, we all whooped for joy and commended the Government for the long-overdue decision to do away with this archaic law and gross violation of human rights. Countries the world over patted Botswana on the back and basked in the adulation. Was it a PR stunt? What changed? Disappointed would be the understatement of the century!
Homosexuality exists in Botswana and has for as long as I’ve been old enough to understand the meaning of the term. Many of us know someone who’s gay and many more have no issues with homosexuality. So the Government’s argument that most Batswana are so myopic as to cling for dear life onto these hate-filled views – in 2021- is lame at best. Before the 2019 landmark case that saw homosexuality decriminalised, the LGBTQ community generally went about their business without much interference from the law – as long as they hid behind closed doors, mind. Try as people did to bury their heads in the sand, they knew they existed. While heterosexuals can parade in front of the world, engage in public displays of affection, the LGBTQ community were forced into the closet. In a sense, the law was a farce because while it was illegal, gay people were generally there for all to see. So as we celebrated, it felt like the decriminalisation of homosexuality in Botswana was simply a formality. It did have something of a hollow feel to it. Now I know why!
That being said, the 2019 victory meant the Government would finally recognise and protect Botswana’s LGBTQ community from untold persecution because while while Batswana are generally tolerant, they can also be fiercely conservative to the point of extreme bigotry. Add to that the fact that there’s a huge section of the population that firmly believe that homosexuality is a choice, a trend that someone can simply be cured of through prayer and various other religious interventions, and you have a truly grim outlook for gays in Botswana should the Government win this appeal. I strongly feel the Government should be focusing on educating people, not adding fuel to the fire with its attempt to reverse what we all thought was a progressive development in Botswana’s human rights record. Should the Government win, it also makes you wonder what the fallout from this flip-flopping will be.
The Government now doing a u-turn of epic proportions so late in the day is beyond absurd and such a travesty. It is a crying shame and tragically, should the Government win, the future of gays in Botswana could be tragic, leaving them open to abuse. I strongly believe this because I have good gay friends who have gone through hell and back at the hands of blinkered and close-minded people in this country. So with that in mind, we will be standing in solidarity with Botswana’s LGBTQ community whatever the outcome while praying for a just outcome.
Tags: Botswana, Botswana High Court, LGBTQ community, homosexuality in Botswana, University of Botswana