Botswana high court decriminalises consensual same-sex sexual conduct
On Tuesday, 11 June 2019, a full bench of the Botswana High Court issued a ground-breaking judgment, decriminalising same-sex sexual conduct between consenting adults. In a unanimous decision, Justices A.B Tafa, M. Leburu and J. Dube found that sections 164(a), 164(c), 165 and 167 of the Botswana Penal Code violated the constitutional rights of lesbian, gay, bisexual and transgender persons to dignity, liberty, privacy and equality.
“It has taken a long time for our community to be where it is. This incredibly life-changing decision, although it does not right all the wrongs done to individual members of the LGBT community, is a step towards restoring our dignity as human beings”, says Anna Mmolai-Chalmers, the CEO of LEGABIBO (Lesbians, Gays and Bisexuals of Botswana). “The decision has several implications for the LGBTIQ community. Not only does it provide legal affirmation and recognition of the rights of LGBTIQ persons, 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”. LEGABIBO submitted expert evidence before the Court that illustrated how continued criminalisation of same-sex sexual conduct limits the ability of LGBTIQ persons to access basic social services, exposes them to stigma and discrimination, and infringes on their basic human dignity.
Programme Lawyer, Tashwill Esterhuizen, at SRT grantee the Southern African Litigation Centre said the following: “The Botswana courts have once again shown themselves to be champions of jurisprudence that acknowledges the dignity of LGBTIQ persons, and that they too, have the right to equal protection before the law. Through their sound legal reasoning and constitutional jurisprudence, the Botswana courts continue to set an example for other courts in the region on the important role that the judiciary can and should play in protecting and promoting human rights of all persons. We hope that this case will set an important precedent for other courts in the region and that they too will follow suit”.
The Southern African Litigation Centre and LEGABIBO published the following press release:
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