Outgoing Botswana judge lauded

The outgoing President of Botswana's Court of Appeal, Justice Ian Kirby, has been lauded by activists for fighting for democracy and human rights. Kirby left office last week after decades on the Bench. ‘He will be remembered as one of the country's best legal minds. One of the champions of human rights and someone who gave home to the LGBTIQ community,’ said Canie Youngman, head of policy and research at Lesbians, Gays and Bisexuals of Botswana (LEGABIBO). The government last week lost a legal attempt to overturn a landmark ruling that decriminalised homosexuality. The 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. Youngman noted that Kirby, with five other judges, unanimously agreed that consensual same-sex activities are enshrined in the Constitution. A report on the News24 site notes that they found that the long-used sections of the penal code to criminalise gay and lesbian people had outlived their usefulness, and served only to incentivise law enforcement agents to intrude into the private space of citizens.

Kirby served for more than 30 years, of which 20 were at the High Court and Court of Appeal, eventually, becoming Supreme Court president. Lawyer Uyapo Ndandi, (Ndandi Law Firm) said Kirby proved that the ‘the law has no business in bedrooms of consenting adults’, adding that the judgment was a lesson for the region to emulate. LEGABIBO joined Letsweletse Motshidiemang who successfully sued to decriminalise same-sex relations in 2019, in the appeal case as a friend of the court. 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 discernable public interest purpose in the continued existence of the sections of 164 (a) and 164(c) of the Penal Code,’ the organisation said. In 1994, Utjiwa Kanane faced charges of an ‘unnatural offense’, for being in sexual relationship with a British tourist, Graham Norrie. Norrie pleaded guilty, paid a fine and left the country, but Kanane pleaded not guilty on the grounds that the applicable codes violated the Constitution.