In a broad and forward-thinking reading of the Botswana Constitution, the three-judge High Court bench unanimously ruled that the criminalising laws were discriminatory against LGBT people and breached their rights to privacy, dignity and liberty.
Sections 164, 165 and 167 of Botswana’s British colonial-era Penal Code outlawed ‘carnal knowledge of any person against the order of nature,’ attempts to commit carnal knowledge and acts of ‘gross indecency’ respectively.
Those convicted under these laws faced jail sentences of up to seven years. Section 167 was updated in 1998 to apply to same-sex acts between women as well as men.
A court case from 2003, in which it was argued that these sections of the Penal Code were unconstitutional, was dismissed by the Court of Appeal, so today’s victory is especially welcome as it aligns Botswana’s criminal domestic laws with both the country’s 1966 Constitution and international human rights law.
Botswana has shown increasing tolerance towards LGBT people in recent years.
In 2016, the Court of Appeal sent a strong and progressive signal that LGBT people have the same human rights as everyone else in the country, whilst in 2018 the President said they are, ‘Just like other citizens and deserve to have their rights protected.’
There has been widespread congratulations across the world for this decision.
Anna Mmolai-Chalmers, chief executive officer of Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo), a Batswana LGBTI advocacy group, said in a press release that it has taken a long time for the community to be where it is now.
“This incredibly life-changing decision, although it does not right all the wrongs done to individual members of the LGBT community, is a step towards restoring our dignity as human beings.”
Director of the Human Dignity Trust (HDT) in London Téa Braun said it was a huge win for the human rights of LGBT people in the southern African country and beyond.
“We heartily congratulate the Botswanan and southern African LGBT human rights defenders and lawyers who have worked tirelessly on this pivotal case,” said Téa Braun, Director of HDT.
“LGBT people in Botswana have had their constitutional rights confirmed today and can now be more hopeful of a future free from discrimination, harassment and violence.
“This judgment, which comes less than three weeks after a deeply regressive decision on the same issue from the Kenya High Court, is legally sound, ground-breaking and courageous, and is a ray of hope for all those LGBT Africans looking to their legal systems for justice and fair treatment,” she added.
“Today’s historic decision by Botswana’s High Court puts an end to a law that discriminated against and violated the most fundamental human rights of an entire group of people,” said Human Rights Campaign Director of Global Partnerships Jean Freedberg in a statement.
Richard Grenell, the openly gay U.S. ambassador to Germany who has been tapped to lead a Trump administration initiative that urges countries to decriminalize consensual same-sex sexual relations, also praised the ruling.
“The U.N. Declaration of Human Rights is clear that criminalizing homosexuality is in direct violation of U.N. principles,” tweeted Grenell after the court announced its decision. “This is good news.”
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