Botswana's landmark gay rights ruling upheld

Botswana's Government today lost a legal attempt to overturn a landmark ruling that decriminalised homosexuality. eNCA reports that the country's High Court in 2019 ruled in favour of campaigners seeking to strike down jail sentences for same-sex relationships, declaring the punishment to be unconstitutional. But the government sought to revoke the ruling, arguing that the courts had no jurisdiction in this matter. ‘Since the appellant's grounds of appeal have been unsuccessful... the appeal must fall,’ Botswana's Court of Appeal ruled yesterday. It had started hearing the case in October. Homosexuality had been banned since 1965 in conservative Botswana, where offenders could face up to seven years in prison. The 2019 judgment was hailed internationally as a major victory for gay rights. Judge Ian Kirby, who read out the ruling yesterday, said gay citizens had long lived in ‘constant fear of discovery or arrest’ when expressing ‘love for their partners.’ ‘This sometimes led to depression, suicidal behaviour, alcoholism or substance abuse,’ he said. Botswana is one of only a handful of African countries to have decriminalised homosexuality. Others are Lesotho, Mozambique, Angola and the Seychelles. SA is the sole nation on the continent to allow same-sex marriage, which it legalised in 2006.

The Southern African Litigation Centre (SALC) said in the unanimous decision, Justices Kirby, Ranowane, Lesetedi, Gaongalelwe and Garekwe found that the Penal Code provisions (sections 164(a) and (c)) violated the right to privacy (section 9 of the Constitution), the right to liberty, security of person and equal protection under the law (section 3 of the Constitution) and the right to freedom from discrimination (section 15 of the Constitution), notes Legalbrief. 'This finding is important since most Constitutions do not explicitly prohibit discrimination based on sexual orientation and gender identity. Still, courts have progressively read the prohibited grounds of discrimination to include sexual orientation and gender identity. This is only the second decision from an apex court in Africa to decriminalise same-sex sex. The previous decision was from the SA Constitutional Court in 1999,' the SALC said in a statement today. The organisation Lesbians, Gays and Bisexuals of Botswana said the decision also lays to rest the argument raised two decades ago in the Kanane judgment that public opinion wants the offending sections to remain by declaring that ‘there can be no discernible public interest purpose in the continued existence of sections 164(a) and 164(c) of the Penal Code’. Since the offence only served to stigmatise gay men and has a harmful effect on them, the court held that the 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.’