BONELA, court grapple with man on man sex

04 Sep 2016

Asked about his party’s position on the subject of homosexuality during the 2014 Gabz FM presidential debates, Umbrella for Democratic Change (UDC) President Duma Boko questioned the government’s right to enter citizen’s private spaces particularly bedrooms.

Boko echoed the opinion of US Supreme Court’s Justice Kennedy in the case of Lawrence Et vs Texas State (2002). “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence,” 

Lawrence and a partner had been arrested after police officers were dispatched to a private residence in response to a reported weapons disturbance. The police entered an apartment where Lawrence resided. The officers observed Lawrence and another man engaging in a sexual act. The two were arrested, charged and subsequently convicted for engaging in sexual intercourse. The applicable state law in the Texas Penal Code (2003) provided that: “A person commits an offence if he engages in deviate sexual intercourse with another individual of the same sex.”

Kennedy said freedom extended beyond spatial boundaries. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” 

The Lawrence case happened around the same period Botswana’s Utjijwa Kanani had gone to court to challenge the constitutionality of the provisions in Botswana’s Penal Code outlawing consensual relations between adults. He had also been charged with having sex with another man. Kanani did not dispute the facts in the case and admitted that he was found in bed with another man. But he said the offense he was alleged to have committed should no longer be the subject of criminal sanction and that the sections of the constitution that bar such conduct should be nullified. After having his initial rape charge changed to having carnal knowledge with another man contrary to section 164 of the Penal Code , another Motswana man is facing time behind bars after being sentenced to three and half years by the Gaborone Magistrates Court. Unlike Kanani, he has denied any sexual activity with the victim.

The Botswana Network on Ethics Law & HIV/AIDS (BONELA) says they will appeal the conviction of their client. BONELA’s Policy and Legal Advisor Phazha Molebatsi says the client has given the organisation the mandate to take the matter on appeal against conviction and sentence in line with the organisation’s strategic objective of ensuring access to justice for vulnerable and marginalised populations including men who have sex with men. 

The man had initially been charged with rape. “When the matter started our client was charged with an offence of having had unlawful carnal knowledge with another man without his consent,” says a statement from BONELA. “This charge was unexpectedly altered to that of him having had carnal knowledge with another man contrary to section 164 of the Penal Code which criminalises same sex acts as being unnatural.

“BONELA has always held the position that section 164 of the Penal Code should not be part of the laws of Botswana for several reasons,” the statement says. “Among others, section 164 of the Penal Code is unconstitutional as it discriminates against homosexual people; non-discrimination being a fundamental right to be enjoyed by all under the constitution.” 

It says the position was reiterated in the recently delivered LEGABIBO registration case that “nothing could be plainer and that there are no exclusions whatever”. It says over and above the foregoing they are of the strong view that the law fuels stigma faced by homosexual people, perpetuating their unequal treatment which also has adverse consequences on the country’s response to HIV/AIDS. 

“We can attest to this aspect as for a very long time our client would not let the attorneys engaged by BONELA challenge the constitutionality of this section from the onset for fear of stigma.

“The Coordinator of LEGABIBO Anna Chalmers is of the view that this current conviction is testimony that despite assurances by the leadership of former president Festus Mogae guaranteeing that there will be no persecution of people on the basis of their sexual orientation, the State has gone against its word. “A need thus remains to have this repugnant section removed from our laws.”