Botswana has decided to uphold the 2019 ruling that decriminalizes gay sex in the country after years of deliberation. The ruling cannot be further appealed now it has reached the highest court. It has become law.
In June 2019, the High Court of Botswana ruled unanimously to remove section 164(a) and (c), and section 167 of the Penal Code which criminalized same-sex relations, or “carnal knowledge against the order of nature,” according to OutRight.
However, in October 2021, Botswana’s Court of Appeals reconsidered removing the ban on gay sex. Acting Executive Director of OutRight Action International, Maria Sjödin, commented at the time, “Criminalization of same-sex relations was imposed by the British colonial power and has long since been recognized as discriminatory and in violation of international human rights standards.”
“The courts in Botswana have a record of trailblazing rulings which recognize the rights of LGBTIQ people, ruling in 2014 that the state has to register an LGBTIQ organization, in 2017 that legal gender recognition is a right, and in 2019 ruling to decriminalize same-sex relations. I hope that the Court of Appeals will continue this trend and uphold decriminalization, which has already made a significant impact on the lives of LGBTIQ people in Botswana.”
Justice persevered when, in November 2021, the Court of Appeals ruled in favor of homosexual rights. The attempt to overturn decriminalizing homosexuality failed. The ban on gay sex has officially — permanently — been lifted.
The gay and lesbian community of Botswana has celebrated the decision as an act of “true democracy,” according to Reuters. Before 2019’s High Court ruling, gay sex in Botswana was punishable by up to seven years in prison.
“This will forever change the landscape of democracy, human rights and equality in Botswana. Finally the state will have no business in what two consenting adults do in their privacy,” Sethunya Mosime, chairperson the Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO), said outside the court.
“This case has tested Botswana democracy and independence of judiciary. We can strongly say Botswana is a true democracy.”
Court of Appeal Judge President Ian Kirby said, while reading out the unanimous decision, that the “criminalisation of consensual same-sex activities violated the constitutional rights of lesbians, gays, bisexuals and transgender persons to dignity, liberty, privacy and equality.”
He said gay citizens have long lived in “constant fear of discovery or arrest” when expressing “love for their partners…This sometimes led to depression, suicidal behavior, alcoholism or substance abuse,” he said.
“[The sections that detailed a ban on same-sex relations] have outlived their usefulness, and serve only to incentivise law enforcement agents to become key-hole peepers and intruders into the private space of citizens.”
