Botswana Court of Appeals unanimously upholds decriminalization of gay sex

In a unanimous decision, the Botswana Court of Appeals upheld the 2019 ruling that decriminalized gay sex in the southern African country, which had been appealed almost immediately by the government. The Court’s decision cannot be further appealed.

Botswana Attorney General Abraham Keetshabe argued that “the High Court erred” in decriminalizing gay sex. (Photo courtesy of BWgovernment via Facebook)

In the unanimous November 29 ruling, the Court of Appeals upheld that gays and lesbians are entitled to dignity, liberty, privacy, and equality under the constitution of Botswana. Consequently, colonial-era laws that condemned gay sex with penalties of up to seven years in prison were in violation of the constitution.

“Those sections [of the penal code] have outlived their usefulness, and serve only to incentivise law enforcement agents to become keyhole peepers and intruders into the private space of citizens,” court of appeal president Ian Kirby said as he read the court’s ruling in Gabarone.

The original decision also found that “sexual orientation” was a prohibited ground of discrimination under the constitution’s ban on discrimination based on sex, which the court of appeal also upheld.

In a statement released on Twitter, the national LGBT advocacy group LEGABIBO said it hoped that the ruling would lead to broader acceptance and inclusion of queer people in Botswana.

“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 judgement sets precedence for the world at large,” LEGABIBO CEO Thato Moruti says in the statement. “Moreover, a new dawn for better education and awareness about the LGBTIQ issues. I anticipate more engagement with various arms of government will also set a trajectory towards a more inclusive and diverse nation.”

The statement calls for the government to pass legislation protecting the LGBTI community from violence.

There are also hopes that the decision could have a ripple effect across southern Africa. Several states in the region have decriminalized gay sex legislatively in the last decade, including Lesotho, Mozambique, Gabon, and Angola. The government of Namibia announced plans earlier this year to eliminate the common law crime of sodomy, but has not yet done so. And a court hearing on the legality of Mauritius’ sodomy law is currently under way. Conversely, a court in Kenya sided with the government in upholding that country’s sodomy laws.

“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 principal of the universality of rights,” says Anneke Meerkotter, Executive Director of the Southern Africa Litigation Centre in the LEGABIBO statement. “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.”

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