A court order turned up by the Sunday Standard suggests that Botswana lied to the United Nations Committee on Human Rights that the country courts have never convicted any suspect accused of unnatural offences contrary to Section 164 of the Penal Code.
The section criminalises sex between people of the same sex.
Botswana claimed in its report dated 7th October 2021 and filed with the United Nations that no persons have been charged and convicted for violating the above provision since its inception.
A magistrate court order seen by this publication and issued by Magistrate Goodwill Gibson Makofi dated August 2016 however states that, “the accused person is sentenced to three and half years of imprisonment from which must be deducted the period he spent in custody whilst remanded for this matter.” The order further states that “two years thereof is suspended for three years on condition that the accused is not convicted of a sexual offence during the period of suspension.”
In its report, the Botswana government claimed zero tolerance to discrimination and violence against any of its citizens, including the LGBTI Community. The report further states that in 2016, the Government of Botswana declared a certain Pastor Steven Anderson a prohibited immigrant and deported him to his country of origin for preaching violence and discrimination against LGBTI persons during an interview with one of the local radio stations. “This was a measure taken by Government to curb incitement to discrimination and violence against LGBTI by religious organisations”, the report states.
“Botswana continues to make progress in the recognition of the rights of the LGBTI. In 2017, in the case of Kgositau v. Attorney General and Registrar of National Registration, the High Court ordered the Director of National Registration to issue a transgender woman with a new identity card identifying her as female,” the report says.
It says Kgositau had made an application to court arguing that she had since an early age, identified as a woman and that the male gender on her identity document was causing her emotional distress and increasing her vulnerability to abuse and violence.
The report further states that the “President of the Republic of Botswana, His Excellency Dr. M.E.K Masisi, during his commemorative speech at the 16 days of Activism against violence on women and children in November 2018, emphasized the need to protect the rights of LGBTI people. He made it clear that LGBTI people have the same rights as every other citizen. “
The report quoted the President as saying, “There are also many people of same sex relationships in this country who have been violated and suffered in silence for fear of being discriminated. Just like other citizens they deserve to have their rights protected.” He also called on the society to remember all those victims and communities that are vulnerable to violence and abuse.
“The President’s speech was a demonstration of political will which if leveraged upon, could influence legislative reforms, public policy and awareness raising initiatives on the part of Government to protect persons from discrimination and violence based on sexual orientation and gender identity,” the report says.
It says during the State of the Nation Address in 2019, the President further said that Government intended to conduct a comprehensive review of the Constitution of Botswana to remove any provisions that may be deemed discriminatory.
“In June 2019, the High Court of Botswana, in the case of Letsweletse Motshediemang v. Attorney General MAHGB – 000591 – 16, held that same sex relations are lawful and that Section 164 of the Penal Code which criminalised such acts should be repealed. The matter is currently awaiting final determination by the Court of Appeal. Government will take into account the outcome of the appeal in deciding whether or not to repeal Section 164 of the Penal Code,” says the report.