Bonela client found guilty under section 164 of the penal code

The Botswana Network on Ethics Law & HIV/AIDS (BONELA) regrets to announce that one of its clients has been found guilty of violating section 164 of the Penal Code of Botswana. This was after an accusation that he had slept with another man. He has been sentenced by a Gaborone Magistrate Court to three and half years, two of which have been suspended for three years.
When the matter started our client was charged with an offence of having had unlawful carnal knowledge with another man without his consent. This charge was unexpectedly altered to that of him having had carnal knowledge with another man contrary to section 164 of the Penal Code. The last charge criminalises same sex acts for being unnatural.
BONELA has always held the position that section 164 of the Penal Code should not be part of the laws of Botswana for several reasons. Among others, section 164 of the Penal Code is unconstitutional as it discriminates against homosexual people; non-discrimination being a fundamental right to be enjoyed by all under the constitution. This was reiterated in the recently delivered LEGABIBO registration case that “nothing could be plainer and that there are no exclusions whatever”.
Cindy Kelemi, the Executive Director of BONELA stated that over and above the foregoing we are of the strong view that this discriminatory law fuels stigma faced by homosexual people, perpetuating their unequal treatment which also has adverse consequences on the country’s response to HIV/AIDS. We can attest to this aspect as for a very long time our client would not let the attorneys engaged by BONELA challenge the constitutionality of this section from the onset for fear of stigma.
The Coordinator of LEGABIBO Anna Chalmers stated that this current conviction is testimony that despite assurances by the leadership of Former President Festus Mogae guaranteeing that there will be no persecution of people on the basis of their sexual orientation, the State has gone against its word. A need thus remains to have this repugnant section removed from our laws.
BONELA’s Policy and Legal Advisor Phazha Molebatsi stated that the client has given the organisation the mandate to take the matter on appeal against conviction and sentence in line with the organisation’s strategic objective of ensuring access to justice for vulnerable and marginalised populations including men who have sex with men.
The Botswana Network on Ethics, Law and HIV/AIDS (BONELA)
BONELA can be contacted on+267 393 2516 or bonela@bonela.org
For more information please contact:
Phazha Molebatsi – Policy & Legal Advisor phazham@bonela.org +267 75 49 05 99 Cindy Kelemi – Executive Director cindyk@bonela.org +267 73 58 68 886 Follow BONELA on Twitter on @ bonela_ethics and like our Facebook Page BONELA