The African nation going against the tide on sodomy laws

What started out as a legal challenge to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) as a society and affirm its right to advocate on behalf of the southern African nation's queer population turned into a much larger victory.

Botswana's government announced that it is enforcing a court decision that struck down the nation's sodomy laws - a move that is expected to give hope to LGBTQ+ people in other African countries that have similar laws in place. Botswana’s Minister of Justice Ronald Shamukuni is expected to table a bill amending the penal code in Parliament during the winter session - which runs from July to August - to decriminalise homosexuality.

Campaigners have largely welcomed the decision to table the bill, and believe the decision raises hopes for other African countries scraping anti-sodomy laws. 

Before the Botswana High Court's landmark decision to decriminalise same-sex relations, the LGBTQ+ community in the country faced significant obstacles in their fight for recognition. Despite numerous attempts to register LEGABIBO as a society, the government, through the Registrar of Societies under the Ministry of Labour and Immigration, repeatedly refused to do so, citing the fact that some of the organisation's activities were not recognised by law.

But on 16 March, 2016, a full bench of the Court of Appeal of Botswana delivered a significant judgment in the case of Attorney General v Thuto Rammoge upholding the decision of the High Court and ordering the Botswana government to register LEGABIBO as a society under the terms of the Societies Act. 

The government’s position was that LGBTQ+ people’s rights were not recognised by the Constitution and that the objectives of LEGABIBO were incompatible with peace, welfare and good order.

But activists soldiered on and took Botswana's government to court. Three years following the recognition victory, LEGABIBO’s efforts were rewarded once again when the High Court ruled that the criminalisation of same-sex sexual activity is unconstitutional and cannot, therefore, be part of Botswanan law in 2019 and 2021 respectively. Two years later, this decision was upheld by the Court of Appeal - the highest court in the land. 

Before the rulings of the High Court and the Court of Appeal were delivered, Botswana’s penal code had outlawed "carnal knowledge of any person against the order of nature," with those convicted facing up to seven years in prison, while "indecent practices between persons" in public or in privacy were punishable by up to two years in prison.

The High Court and Court of Appeal's ruling involved the University of Botswana's Letsweletse Motshidiemang, a gay man who took the government to court, questioning the constitutionality of "[t]he laws against homosexuality [...] introduced while Botswana was under British colonisation." Motshidiemang’s petition described the law as 'outdated' and referenced the international community’s "growing acceptance of queer relationships."

Local activists express CAUTIOUS optimism   

Speaking to FairPlanet, Katlego Kai Kolanyane-Kesupile, an LGBTQ+ activist and the first public figure from Botswana to openly identify as trans, described the amendment as "a valuable move toward Botswana honouring its presentation as a democratic state that stands against human rights violations."

"The dignity that non-heterosexual people have been robbed of by way of assumed criminality due to the existence of these clauses can’t be undone," she added, "but the striking down of these clauses offers a chance for generations of people in Botswana to experience true freedom."

Kolanyane-Kesupile, who is also a musician and a writer, said that "Tolerance is not the goal; we are working toward full inclusion." 

She further noted that the law criminalising same-sex relations has been used by individuals to justify their discriminatory and prejudiced attitudes towards the LGBTQ+ community. With the repeal of this law, she believes, such individuals will be disarmed of this pretext for their ignorance and prejudice.

But Kolanyane-Kesupile cautions that much work still needs to be done, as various agencies and departments of the State have not fully discharged their responsibility to educate leaders on the potential impact of the legal change. According to her, there are still key stakeholders, such as traditional leaders, ministers, teachers, and other individuals with significant influence, who have not been properly engaged in the effort to effect the necessary mindset changes within society.

In order for Botswana to be a political influencer on social matters beyond its borders, Kolanyane-Kesupile believes, the recent ruling  must be translated into concrete action. 

"When services are provided without inhibition, when barriers to access to care are abolished, when LGBTQIA+ people are able to attest to an elevation in their quality of life openly, that’s when I think we will see ripples," she said. 

She added, "We need to get to a point where queer people are fully free and able to have holistic lives. We need to see all the laws that inhibit access to justice and dignity - such as the inability to change one’s name or gender marker at will - struck down, and to have services made readily available." 

In a statement released ahead of the debate on the bill by Parliament, LEGABIBO informed "stakeholders, the members of Parliament and the general public that we remain resolute in the decision by our courts declaring the unconstitutionality of section 164 (a) and (c) on November 29th, 2021."

LEGABIBO also reminded the public that "by insinuating discrimination, laws criminalising homosexuality [reinforce] systemic disadvantage of lesbians, gay men and bisexual people and against transgender and [act] as an official incitement to our justification for violence against them, whether [in] custody, in prison, on the street or in the home."

LEGABIBO urged the public to help to support the bill and "recognise that members of the LGBTQ community form part of the family institution in Botswana.

"We appeal to Batswana as a whole to stand with your brothers, sisters, friends and extended family members that are LGBTIQ identifying." 

On the political front prior to the High Court’s decision, Botswana President Mokgweetsi Masisi set the tone for tolerance of the gay community in the country, observing that "There are also many people of same sex relationships in this country, who have been violated and also suffered in silence for fear of being discriminated, just like other citizens, they deserve to have their rights protected."

Following the 2019 judgement by the High Court, the ruling Botswana Democratic Party (BDP) said on its official Facebook page: "This we will achieve through the promotion of diversity, inclusion, open-mindedness, tolerance, protecting human rights and upholding good governance in order to achieve prosperity and a progressive future for all our citizens."

Speaking to FairPlanet about the recent move to decriminalise same sex relations, human rights lawyer Uyapo Ndadi said: "This is a natural consequence of the judgment by the Court of Appeal. The government had no choice as they lost the case. In fact the government had delayed to implement." 

He added, "The debate in parliament would be pointless, as parliament can't say 'no.' Their hands are tied."

Asked if the move by Botswana to decriminalise same sex relationships could encourage other countries to follow suit, Ndadi answered in the affirmative. "It might make other countries see that even conservative nations like Botswana have moved forward in embracing sexual diversity."

Partial decriminalisation of same-sex relations

The Botswana Network Ethics Law and HIV/AIDS (BONELA), which coordinates the activities of LEGABIBO and promotes the health and well-being of key and vulnerable groups in the country, described the move as a "welcome development."

BONELA Director Cindy Kelemi told FairPlanet that the Penal Code (Amendment) Bill no. 29 of 2022, which has been introduced to Parliament, would remove section 164(a) and (c) from the Penal Code.

"However, this would only achieve partial removal of the colonial-era laws criminalising same-sex sexual activity," she said. "The criminalisation of consensual same-sex activity between adults in private via section 167 would remain in place."

In her opinion, a straightforward solution to address the issue of discrimination against LGBTQ+ individuals in Botswana would be to amend the Penal Code by removing the words "whether" and "in private" from section 167. This change would align the Penal Code with constitutional protections for LGBT people and eliminate the need for further costly and time-consuming legal battles.

Kelemi explained that there remain other provisions within the sexual offences laws of Botswana which are not fully human rights-compliant, and that even the language of "gross indecency" in an amended section 167 is often considered stigmatising by queer people.

"The Penal Code currently contains provision 167, which is in relation to indecent practices between persons. The provision states that: 'Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or private, is guilty of an offence.' "  

Kelemi said that the Court of Appeal did not address this provision because it was not raised by the applicant. She is of the view that the words "in private" must be removed from section 167 as well. "The Penal Code will otherwise appear to criminalise same-sex sexual activity carried out in private between consenting adults," she said. 

"There is little point in removing the provisions that have already been struck down by the courts in the most emphatic terms while retaining the twin provision that could not, for entirely technical reasons, be removed. A common-sense approach must prevail, with the bill amended accordingly," she said. 

"When services are provided without inhibition, when barriers to access to care are abolished, when LGBTQIA+ people are able to attest to an elevation in their quality of life openly, that’s when I think we will see ripples."

Botswana Government’s reacts to court decision

Botswana's minister of justice Ronald Shamukuni stated, "As you may be aware, on 27th November 2021, the Court of Appeal of the Republic of Botswana made a decision in the case of the Attorney General and Letsweletse Motshidiemang. Sections 164 of the Penal Code is being amended to comply with the Court of Appeal decision which held that criminalising same-sex sexual conduct is unconstitutional as it violated the constitutional rights of lesbians, gays and transgender persons to dignity, liberty, privacy and equality."

Former Attorney General Abraham Keitshabe, who retired recently and lost the appeal, said at the official opening of the legal year in April this year that the government "immediately commenced the process of compliance with the Court of Appeal order and accordingly drafted a new Bill." 

Meanwhile, the Presidential Commission of Inquiry into the Review of the Constitution of Botswana recommended that intersex and transgender persons should be allowed to change the gender identity assigned to them at birth to their preferred gender on official government documents.

"It was submitted that they did not fit the binary notion of female or male, there was expectation under the law for them to select their gender, along the lines of female or male. This was viewed as discrimination against them," states the report.

The report further recommends that the Births and Registration Act should be amended to provide for delayed for selection of gender marks for intersex and transgender persons until the individual is prepared to choose their preferred gender.  

International community hails the decision 

Reports indicate that same-sex relationships are illegal in more than 70 countries worldwide, almost half of them in Africa, where homosexuality is widely condemned. Botswana is the latest African country to decriminalise homosexuality, following in the footsteps of countries like Angola, which did so in January, the Seychelles (2016), Mozambique (2015) and Lesotho (2012).

In a previous statement following the High Court’s ruling, Amnesty International said the decision marked an exciting new era of acceptance that should motivate other African countries to follow in Botswana’s footsteps.

"The court judgement sends a strong message that no one should be harassed, discriminated against or criminalised because of their sexual orientation," said deputy director for southern Africa, Muleya Mwananyanda. "With this ruling, Botswana has said 'no' to intolerance and hate and 'yes' to hope and equality for all people."

Following the 2021 decision of the Court of Appeal, the Embassy of the United States of America, the Embassy of France, the Embassy of the Federal Republic of Germany, the Delegation of the European Union, the British High Commission, the Australian High Commission, and the High Commission of Canada said in a joint statement that they "welcome" and "celebrate" the Botswana Court of Appeals decision to affirm the repeal of Section 164 of the Penal Code.

The diplomatic missions said that due to the "tireless efforts of LGBTQI+ advocates to stand up for their human rights, Botswana’s laws are being updated to reflect this change."

The Impact of same-sex intimacy criminalisation 

A report compiled by the Arcus Foundation references a 2012 Botswana’s Ministry of Health study on "select high risk sub-populations" in the country.

According to the report, "The data collected shows that of the 450 MSM (men who have sex with other men) surveyed 11.6% indicated that they had experienced some form of physical violence in the past six months [...] With 5.9% indicating that they had been forced into sex in the past six months."

In a study conducted in Botswana in collaboration with the East African Research Collective on Health, researchers Alex Muller and Kristen Daskilewicz found that LGBTQ+ people living in Botswana have "a higher burden of mental health concerns" compared to the general population.

"This high burden of mental health concerns is, at least in part, due to experiences of violence, stigma, prejudice and discrimination at individual and institutional level," the authors of the study wrote. "Sections 164 (a) and (c) and 165 and 167 of the Penal Code of Botswana, which criminalise same-sex activity, codify sexual orientation and gender identity-related stigma, prejudice and discrimination into the Penal Code."

Additionally, the study found that in Botswana, individuals who identify as LGBTI, regardless of their specific sexual orientation, gender identity, or gender expression, experience higher levels of depression, anxiety, suicidality and substance use compared to the general population.

"LGBTI people are also more likely to experience verbal harassment, physical and sexual violence than the general population, and face sexual orientation - and gender identity related barriers when trying to access healthcare," the study found.

Image by Alisdare Hickson