Image: Lillen from Pixabay
There was jubilation at the Botswana High Court on Tuesday, June 11, as the Justices ruled unanimously in favour of decriminalising consensual same-sex relations.
The justices found that sections of the penal code violated the constitutional rights of lesbian, gay, bisexual and transgender people to dignity, liberty, privacy and equality. Under the Colonial era laws, consensual same-sex relations were punishable by up to seven years in prison.
Delivering the much-anticipated decision, Justice Michael Leburu said "A democratic society is one that embraces tolerance, diversity and open-mindedness."
"There's nothing reasonable in discriminating ... Human dignity is harmed when minority groups are marginalised."
"Sexual orientation is human, it's not a question of fashion," he added.
"The question of private morality should not be the concerns of the law ...The state cannot be sheriff in people's bedrooms."
"Societal inclusion is central to ending poverty and fostering shared prosperity.”
The case was bought by Letsweletse Motshidiemang, an openly gay 21-year-old student at the University of Botswana, who argued that the laws criminalising same-sex acts violate his fundamental rights and freedom of liberty because they prohibit him from using his body as he chooses even though he is causing no harm to the public.
In his affidavit, Motshidiemang wrote “I am in a sexually intimate relationship with a man. I have no doubt that this will be the case for the rest of my life. My friends, roommates at the University of Botswana have accepted me, even at the University of Botswana I feel free and accepted.”
LGBT rights group Lesbians, Gays & Bisexuals of Botswana (LEGABIBO) became an "Amicus Curiae", providing their expertise and knowledge to the court, and the Southern Africa Litigation Centre provided legal support.
Activists from LGBT rights group LEGABIBO, who worked on the case to get same-sex relations legalised in Botswana. Image: Legabibo Facebook
Botswana is the latest country in Africa to decriminalise same-sex relations, following Angola in January 2019, the Seychelles in June 2016, Mozambique in June 2015 and and Lesotho in 2012. However, 29 countries still criminalise same-sex relations, and last month, Kenya's high court voted to uphold laws criminalizing homosexuality.
“It has taken a long time for our community to be where it is,” said Anna Mmolai-Chambers, the CEO of LEGABIBO.
“This incredibly life-changing decision, although it does not right the wrongs done to individual members of the LGBT community, is a step towards restoring our dignity as human beings.”
“The decision has several implications for the LGBTIQ community. Not only does it provide legal affirmation and recognition of the rights of LGBTIQ people, but it allows an important space for addressing public health issues more efficiently and effectively.”
“We can finally start building a more tolerant society. The real work starts now.”
Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa, said “This court decision marks an exciting new era of acceptance, which should inspire other African countries to follow suit.”
“It is absolutely thrilling that people in Botswana will no longer be considered criminals because of who they are and who they love. Authorities must immediately implement this progressive judgement.”