BONELA’s Position on the Penal Code Amendment Bill of 2018

Botswana Network on Ethics Law and HIV/AIDS (BONELA) is a human rights organization whose mandate is to make the right to health a reality in Botswana by ensuring that this right is promoted, protected and fulfilled. BONELA is aware that in order for the right to health to be realized, there is need for laws and policies in Botswana that ensure universal access to health services and in addition that such legislative frameworks do not impede access by criminalizing the marginalized and most vulnerable members of our society.
It is against this backdrop that BONELA is very excited that the Ministry of Defense, Justice and Security is making amendments to the Botswana Penal Code of 1964.
As the country strives to achieve the 90-90-90 targets aimed at achieving Epidemic Control by 2020 and ending the AIDS epidemic by 2030, BONELA vehemently advocates that no one should be left behind in the national response to HIV in the context of our planning and policy development. Most importantly, no one should be systematically excluded from accessing treatment for fear of prosecution nor should they be denied legal protection when they have been violated. This is especially true for Sex Workers and the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) members of our society. In light of this, BONELA is gravely disappointed that in amending the Penal Code, Sections 149, 155 and 158 – which relate to sex work-and section 164 (a) and (c)-which relates to same sex sexual relations which the LGBTI community-have been left untouched. Sex Work
Sections 149, 155 and 158 of the Botswana Penal Code criminalise acts associated with sex work including procurement,1 solicitation, living off the earnings of sex work,2 brothel keeping.
This criminalisation of aspects of sex work leads to “victimisation and societal marginalisation of sex workers by 1 Penal Code, Section 149. 2 Id, Section 155. 3 Id, Section 158. The Botswana Network on Ethics, Law and HIV/AIDS (BONELA)  perpetuating stigma, violence, harassment, blackmail and discrimination by state and non-state actors in custody and outside of custody. Sex workers in Botswana have been raped and beaten by police officers and clients with impunity, and arrested for the purpose of extortion. The continued criminalisation of sex work is also used as justification for police to confiscate or destroy condoms in the possession of sex workers, who are then unable to protect themselves from HIV and other STIs. 4 Condoms are used as “evidence” against sex workers, thereby deterring sex workers from carrying them. In some cases, clients have abused sex workers and thereafter refused to pay them and left them in a remote area without clothing. There are also documented cases of sex workers being killed and mutilated with impunity as their business is currently outlawed. ”
Sex workers are therefore some of the most vulnerable members of our society and are highly vulnerable to HIV infection due to the lack of adequate legal protections, and discrimination in health and other public facilities. The 2012 Botswana Behavioural Surveillance Study (BBSS) found that HIV prevalence amongst female sex workers is 61.9% and HIV incidence is 12.5% in the three districts surveyed.8 Broadly, the high HIV prevalence in this population has significant implications for the general population because many clients of sex workers have wives and families; these clients serve as a bridge between female sex workers and the general population910 thereby indicating the need for greater efforts to ensure their protection so they ultimately have increased access to health services, thus allowing the country a to achieve a greater degree of epidemic control. 4 Focus Group Discussion, October 2016; Open Society Initiative for Southern Africa, Rights Not Rescue, A Report on Female, Male, and Trans Sex Workers’ Human Rights in Botswana, Namibia, and South Africa (2009), at 40. 5 Focus Group Discussion, October 2016. 6 Id. 7 Botswana Legal Environmental Assessment, Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis (2017), at 116. 8 Botswana Ministry of Health, Mapping, Size Estimation & Behavioural and Biological Surveillance Survey of HIV/STI Among Select High-Risk Sub-Populations in Botswana, at 9 (2012). 9 Id. 10 Botswana Legal Environmental Assessment, Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis (2017), at 116. The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) 3 Sex Against the Order of Nature 6. Although homosexuality is not illegal in Botswana, Section 164 (a) and (c) criminalize consensual sexual conduct between adults of the same sex. This section of the law leads to stigmatisation of LGBTI persons and makes them vulnerable to blackmail, targeting, violence, illegal detention and other discrimination by state and non-state actors. LGBTI persons therefore are impeded from accessing health services as they are driven underground by the systemic stigma and discrimination they experience when accessing public services. According to the BBSS, HIV prevalence amongst men who have sex with men is 13.1%.11 HIV incidence is 3.6% whereas the general population has HIV incidence of 1.35%.12
The LGBTI community live in an atmosphere of disapproval and live on the fringes of society; isolated. LGBTI persons report that they fear being “discovered’’ or exposing oneself by telling the truth if for instance they have been raped or having an anal STI, they find it very difficult to disclose this to a health care worker or to the police due to the criminalising legislation. LGBTI persons therefore are hidden and at risk of contracting HIV. 13 8. In light of the reasons advanced above, and in recognition of the Public Health interest, there is an urgent need for increased public discourse on this issue. BONELA therefore calls on Parliament to analyze this Bill and advocate for sections 149, 155 and 158 as well as 164 to be repealed.