Botswana steps up to embrace sexual rights of its sexually and gender diverse minorities – will other countries in the region do the same?

Words by Russell Armstrong, Senior Research Officer, HEARD

On June 11, the High Court of Botswana handed down a unanimous, landmark decision declaring as unconstitutional sections of the country’s Criminal Code that penalised same-sex sexual contact.  The Court did so on the grounds that these pre-Independence provisions infringed the rights of privacy, liberty, dignity and the right to be free from discrimination, as set out in the country’s Constitution.

Letsweletse Motshidiemang, a university student, in his petition to the Court, described how the law effectively denied him his way of expressing himself sexually in loving and consensual relationships with other men.  The Criminal Code sections struck at the core of his sexual orientation and constituted a form of state intrusion into matters where it could show no legitimate purpose, namely interfering with the sexual expression of consenting adults in their private spaces.

In finding in favour of the young petitioner, the Court expressed itself in profound and affecting terms.  The ruling, written by Leburu J on behalf of a unanimous three-judge bench, is lengthy and truly astonishing in its breadth of erudition.  In begins, quite literally, with the Book of Genesis and the story of Lot, and surveys the myths and facts about sexual orientation and same sex sexual attraction up until the present.  It also cites as legal authorities and guiding ‘wisdom’ on these issues an immense range of national, regional and international judgements, legal texts, treaties and conventions, among other sources, to arrive at the conclusion that the law went beyond what the Botswana’s Constitution permits.  As Leburu J states for the Court in the clearest of terms:

“With greatest respect and deference, I say, dies venit, or simply put, time has come that private same sex sexual intimacy between adults must be decriminalised, as it is hereby proclaimed.”

The judgement goes even further, however, to acknowledge how these outdated laws, “oppress a minority and target and mark them for an innate attribute that they have no control over and which they are singularly unable to change.”  Anal sex, according to the Court, is “merely a variety of human sexuality.”  Finally, the Court reminds the citizens of Botswana that they have expressed a vision to be “a compassionate, just and caring nation,” and that “to discriminate against another segment of our society pollutes compassion.”

To say that the ruling was life-changing for the LGBT community in Botswana is an understatement, particularly in the way that the Court’s interpretation of the Constitution was not only embracing but compassionate towards all diverse individuals.  However, what was also crucial was the recognition of sexuality and consensual sexual expression as fundamental to human dignity and human flourishing.  In essence, the Court stated that the ability to freely choose sexual partners and to express oneself sexually, in private and consensual settings, is an aspect of the right of citizenship in a truly open and democratic society which the Batswana clearly aspire to be.

Will more countries on the African continent who maintain the same English colonial-era statutes follow Botswana’s example and embrace this form inclusion and such recognition of the sexual rights for their citizens?  There could be many sexual and reproductive health gains for all if it were to be the case that more societies on the continent could honour, celebrate and protect the innate diversity of human sexuality.  What is important to note about Botswana is the role of the courts in fostering change, particularly where the legislature was unwilling.  And while there are opportunities and risks however one pursues such a course, what is fortunate for Botswana is that the change comes about by way of an eloquent and deeply felt expression, from such eminent civil authorities, of what the principles of justice, equality and dignity require for all societies that aspire to embody them in whatever region of the world they happen to be located.

The immediate likelihood of a broader and similarly inspired wave of change across the region looks uncertain, however.  In May, a High Court judgement in Kenya regarding almost identical criminal law provisions took a decidedly different turn to find that they were still reflective of the moral values of a majority of Kenyan citizens and that the time had decidedly not come for change.  Furthermore, in highly circular and confusing reasoning, the Court ruled that to change the law to allow same sex sexual expression would amount to endorsing same sex marriage, something that Kenya’s Constitution indirectly prohibits. That decision will surely be appealed by the country’s strong and confident LGBT community (in Botswana, the High Court is the last level of appeal; in Kenya there are two more levels beyond).   Meanwhile, the road ahead for the region on these issues will clearly remain challenging and circuitous but Botswana has a least shown what could be possible!

The full text of the Botswana High Court judgement is available at:

https://www.southernafricalitigationcentre.org/wp-content/uploads/2019/06/Botswana-decrim-judgment.pdf

The full text of the Kenya High Court judgement is available at:

http://kenyalaw.org/caselaw/cases/view/173946/