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BY THOBO MOTLHOKA
For the LGBTQI community, the recent landmark judgement decriminalising same-sex sexual conduct between consenting adults finally opened doors to the freedom they had always longed for.
Freedom has finally come. For many ‘straight’ Batswana men, at least according to social media commentary, the judgement has just handed the gay guy a license to make a move on their heterosexual counterpart.
But Lesbians, Gays and Bisexuals of Botswana (LEGABIBO)’s Caine Youngman warns against the wrong perception that the judgement leads to a countrywide recruitment campaign.
Following the judgement, Youngman says, LEGABIBO will work on assisting the general public to understand the meaning of the court ruling. “We need them to understand that the law cannot allow for the continued abuse of the LGBTQI community as has been the case,” he says. “The general population has always enjoyed protection and freedom while the penal code has hitherto denied the gay community the same. The judgement has only served to place us on an equal footing with our heterosexual counterparts as far as the law is concerned.”
He points a finger at religious fundamentalists who he says have used every opportunity to spread untruths about the LGBTQI community.
Reverend Thuso Tiego is one of the religious leaders who have always spoken against homosexuality. “…We can only pray that those who are trapped in homosexuality like those in adultery , fornication, drunkenness, crime, etc. could experience verse 11 of the same portion of scripture which reads ‘And such were some of you. But you were washed, but you were sanctified, but you were justified in the name of the Lord Jesus and by the Spirit of our God’. ..Even in Sodom and Gomorrah there were the righteous who lived there. God saved them when he decided to destroy all its inhabitants because of such abomination as was performed by citizens,” Tiego wrote on social media following the Court ruling.
But LEGABIBO’s Youngman says winning the case was only the beginning. “We meet every few years as the LEGABIBO with the LGBTQI community to make assessments on specific needs for the community and engage the relevant authorities on matters of legislation.” He does not rule out taking the government to task on the Marriage Act to ensure same sex partners are also included.
On Tuesday a full bench of the Gaborone 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. The High Court declared sections 164(a), 164(c) and 165 of the Penal Code unconstitutional.
The sections prohibit carnal knowledge of a person against the order of nature and attract a term of imprisonment of 7 years. In relation to section 167 of the Penal Code, the Court held that the offence of gross indecency was unconstitutional to the extent that it applied to acts committed in private, and accordingly severed the word ‘private’ from the provision.
LEGABIBO were admitted as a friend of Court in the case, brought before the court by 24 year old Letsweletse Motshidiemang.
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.
“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, LEGABIBO’s CEO. “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.”
The High Court judges questioned the purpose of these laws: “What regulatory joy and solace is derived by the law, when it proscribes and criminalises such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct? Is this not a question of over-regulation of human conduct and expression, which has the effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights?” The Court judgement ruled that personal autonomy on matters of sexual preference and choice must be respected. That any criminalisation of love or finding fulfilment in love dilutes compassion and tolerance.