- LEGABIBO: The victory presents an opportunity for increased public education and awareness about LGBTIQ issues
Gay rights activists emerged victorious once again when the Court of Appeal dismissed, with costs, the appeal by the government to strike down a High Court ruling that decriminalised same sex sexual activities in Botswana.
The appeal was heard before a five-judge panel at the Court of Appeal on 12 October 2021 and the judgement passed on Monday 29 November 2021.
The appeal by government, through the Attorney General, follows the 2019 High Court ruling that overturned a colonial-era law that punished gay sex by up to seven years in prison, stating that it was unconstitutional. The judgment, which had attracted international attention, was seen as a landmark for gay rights activists in a case that attracted international attention for the decision that put Botswana among a select group of African countries that upheld LGBTIQ rights.
In a unanimous decision, Justices Kirby, Rannowane, Lesetedi, Gaongalelwe and Garekwe found that the Penal Code provisions [sections 164(a) and 164(c)] violated the right to privacy, the right to security of persons and equal protection, as well as the right to freedom from discrimination.
When he handed down the ruling, Court President Justice Ian Kirby said these provisions are no longer relevant and have “outlived their usefulness”.
“In my judgement, they have been rendered unconstitutional by the march of time and the change of circumstances,” he intoned. “At present, they serve only to stigmatise gay men unnecessarily, which has a harmful effect on them, and as far as I am (concerned), there has never been any prosecution of a woman, or even any thought of doing so, for the offence of sodomy.”
“Those sections have outlived their usefulness and serve only to incentivise law enforcement agents and others to become key-hole peepers and intruders into the private space of citizens. That, in my view, is neither in the public interest, nor in the nature of Batswana.”
Justice Kirby therefore agreed with High Court Judge J. Leburu to strike down the two sections on the grounds that they breach the fundamental right to privacy as well.
Representing the state, Advocate Sydney Pilane had urged the court not to assume that Batswana would accept and respect homosexuals based on a court order even though they respect courts. He argued that the matter ought to be taken to Parliament as it is responsible for laws and policies, and not courts of law.
On the other hand, the attorney representing LEGABIBO, Tshiamo Rantao, had argued that members of the LGBT community were entitled to protection of their constitutional rights and that criminalising homosexuality enables stigma and negative attitudes towards gay people.
Said the CEO of LEGABIBO, Thato Moruti, welcoming the decision: “Today is a momentous day in history, a victorious win in ascertaining the liberty, privacy and dignity of the LGBTIQ persons in Botswana.”
Moruti added that the decision presented an opportunity for increased public education and awareness about LGBTIQ issues.