The Botswana Court of Appeal has issued a judgment to decriminalize consensual sex between same-sex partners, upholding a High Court ruling from 2019. In a unanimous decision, Justices Kirby, Ranowane, Lesetedi, Gaongalelwe and Garekwe, found that the Penal Code provisions [sections 164(a) and (c)] violated the right to privacy (section 9 of the Constitution), the right to liberty, security of person and equal protection under the law (section 3 of the Constitution) and the right to freedom from discrimination (section 15 of the Constitution).
Watch a video from the court proceedings below.
The State appealed the High Court decision of 11 June 2019, where a full bench of the Botswana High Court unanimously found that the criminalization of consensual same-sex sex violates the constitutional rights of lesbian, gay, bisexual, and transgender persons to dignity, liberty, privacy, and equality. A full bench of five Botswana Court of Appeal judges heard the appeal on 12 October 2021.
The Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO), with support assistance from the Southern Africa Litigation Centre (SALC), was admitted as amicus curiae (friend of the Court). They submitted evidence before the Court on the negative impact of the laws, which include fuelling stigma, discrimination, violence against the LGBTIQ community, prohibiting access to health services, and affecting persons’ mental health.
“Today is a momentous day in history, a victorious win in ascertaining liberty, privacy, and dignity of the LGBTIQ persons in Botswana, and definitely, this judgment sets precedence for the world at large,” LEGABIBO CEO Thato Moruti said in a statement released after the judgment was announced. “Moreover, a new dawn for better education and awareness about the LGBTIQ issues. I anticipate that more engagement with various arms of government will also set a trajectory towards a more inclusive and diverse nation.”
“This decision comes at a critical time,” says Anneke Meerkotter, Executive Director of the Southern Africa Litigation Centre. “Arguments against the recognition of LGBTI rights continue to hold sway in parts of Africa, leading to legislative proposals that are an antithesis to the principle of the universality of rights. The Botswana Court of Appeal’s well-reasoned judgment makes an objective contribution to the discourse around the validity of criminal intervention in matters of sexual intimacy.”
This ruling comes at a time when state and non-state actors still repress the rights of many LGBT people across the continent. Botswana’s victory is a win for the community across the continent while hoping that a change will soon come.
