How Law can we go?

14 Jun 2018

The laws criminalising same sex relationships continue to haunt the Lesbian Gays Bisexual Transgender Intersex (LGBTI) community in Botswana. LEGABIBO, an organisation which advocates for the rights of the LGBTI fears that laws that criminalise same sex relationships is whipping up public hysteria against the marginalised LGBTI community. The issue of laws criminalising same sex relationships is currently being challenged before the courts in Botswana as some people view such laws as archaic. 

LEGABIBO is of the view that decriminalising consensual same sex relationships is an important step towards achieving Botswana’s values of inclusion, tolerance, celebration of diversity, respect for individual dignity and care for the most vulnerable and marginalised community. The organisation says although it is not an offence to be gay or a lesbian in Botswana, the LGBTI community continues to be scolded in public for what they wear and how they look.

 LGBTI Spokeperson Caine Youngman says although it is not a criminal offence to be a gay or lesbian, the laws that exist continue to fuel hatred against the LGBTI community, adding that the laws encourage the public to have some negative perception on the LGBTI.

“The LGBTI community has been scolded in the society because of how they wear and look. It does not only end with the scolding as there is continuous denial of the community to access health services which put the community at high risk of diseases such as HIV,’’ says Youngman.

According to Youngman, criminalising same sex sexual relationships further exposes the already marginalised LGBTI to sexually transmitted disease and HIV. He explained that as a result of criminalisation, the LGBTI community are unable to access health services because of the discrimination that exists. Youngman explained that Botswana has not been spared by HIV incidents among Man who have Sex with man (MSM) in Botswana as indicated in the 2017 National Progress Report.

He is of the view that with laws that criminalise same sex sexual relationships, there are possibilities of leaving many key populations such as MSM in the fight against HIV. Youngman indicated that failure to access health will hinder any efforts in fighting HIV among key populations. In the national progress report it also became evident that over 60% of MSM are unaware of the higher risks of HIV acquisition associated with anal sex.

He was quick to point  out that there are incidents of gender violence that exist among LGBTI that police have turned a blind eye on as a result of laws that criminalise same sex relationships.

“There is gender violence among the LGBTI and this continues to affect them. Even if there are such cases the victims fail to report such cases because police always scold them for having same sex relationships. Police are not treating this as gender based violence because the relationship is of the same sex partners,” says Youngman.

Botswana Network on Ethics, Law and HIV/AIDs (BONELA) has confirmed that they have registered many cases of gender based violence among Lesbians, Gays, Bisexual and Transgender. BONELA also fear that gender based violence among same sex relationships is escalating due to laws criminalizing same sex relationships.

BONELA also says the absence of laws that support same sex relationships has possibilities of fuelling gender based violence among same sex relationships. BONELA Director Cindy Kelemi revealed that gender based violence is fuelled by laws that prohibit same sex relationships.

Kelemi also says there could be more cases that go unreported since people fear that the law criminalises same sex relationships. “In the absence of laws supporting same sex relations such cases could be more as people fear to report. We are currently investigating matters relating to such cases,” added Kelemi. According to BONELA there were 15 cases of gender based violence in 2015, while there were 10 cases of gender violence among LGBTI.

 Kelemi stated that they have tried to intervene to resolve such matters because it becomes difficult to refer cases of such nature to the police. One of the cases reported involved abusive relationship among gay partners in Gaborone.

According to BONELA, a gay man had indicated that his partner was aggressive and continued to assault him. The victim had wanted his partner to be punished for his continuous abuse in order to stop him from assaulting him. BONELA indicated that they referred the matter for counselling since the victim wanted to continue with the relationship.

In another case a rape and blackmail case was reported to BONELA. According to BONELA, one of the partners among two consensual gay adults who have been having sex reported a rape case. BONELA stated that one partner who had wanted his partner to assist him financially reported the matter to police claiming that he was raped by his partner after he failed to give him money after they were romantically involved in sex. 

However, Mahalapye East MP, Botlogile Tshireletso says that there is need to look at the laws to stop gender based violence among the same sex relationships. “I am aware of such cases but the problem is that the situation could continue since our laws prohibit same sex relationships,”added Tshireletso. Tshireletso stated that it was worrisome that other communities are left behind on the issue of gender based violence.