Botswana government’s relentless, homophobic fight against the rights of the local homosexual community continues at the Court of Appeal in Gaborone this week (October 12, 2021). Following their victory at the High Court in 2019 the local LGBTQI community will face one last hurdle in their quest for constitutional freedom.
The ruling was seen by human rights activists and (in particular) LGBTQI community as a gigantic leap towards the end of persecution, fear of arrest and harassment by the police, shaming by health-care professionals, and extortion.
“That stigma often drove men who have sex with men to hide their sexuality behind a façade of heterosexual relationships. This ruling provides some hope for a safer and greater dignity as the need to hide from the law is removed,” one source said following the ruling.
The face of the campaign Letsweletse Motshidiemang through his lawyer Gosego Lekgowe successfully took the government to court in 2019 seeking the High Court to (among other reliefs) declare sections 164(a), (c) and 165 of the Penal Code criminalizing homosexual acts between two adults in private as unconstitutional, arguing they violated the right to liberty, privacy, dignity and non-discrimination.
Motshidiemang was joined by LGBTQI organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) through their lawyer Tshiamo Rantao.
In a unanimous ruling the three judge panel found that “Sections 164(a); 164(c) and 165 of the Penal Code are declared ultra vires the Constitution, in that they violate Section 3 (liberty, privacy and dignity); Section 9 (privacy) and Section 15 (discrimination). Under Section 167 of the Penal Code, the word ‘private’, is to be severed and excised therefrom, so as to remove its unconstitutionality from the remaining valid provision.”
The State, through The Attorney General, challenges the decision of the High Court citing (among other reasons) that the High Court erred in finding that “Sections 164(a); 164(b) and 165 of the Penal Code were ultra vires Section 3 of the Constitution of Botswana on the bases stated or any other , and in striking those provisions down.”
The State also argues the Court erred in finding that Sections 164(a); 164(b) and 165 of the Penal Code were ultra vires Section 15 of the Constitution of Botswana on the bases stated or any other, and in striking those provisions down.”
Most notably, the State aims to challenge the powers of the High Court to “overrule” the Court of Appeal in the 2003 Kanane vs The State ruling. Utjiwa Kanane had been charged with “committing an unnatural” offence, contrary to section 164(c) of the Penal Code, and committing indecent practices between males, contrary to section 167. The incident (which occurred 1994) also involved a British tourist Graham Norrie, who pleaded guilty, paid a fine, and left the country. Kanane pleaded not guilty, and unsuccessfully challenged the constitutionality of sections 164(c) and 167 of the Botswana Constitution.
The Court of Appeal in the Kanani case found that “No evidence was put before the Court that public opinion in Botswana has so changed and developed that society in this country demands such decriminalization” of same sex practices. The 2003 Court of Appeal ruling also found that the fact that the laws in question had been amended as recently as 1998 indicated (at the time) that societal attitudes had not changed. “The legislature, in passing the 1998 Amendment Act, clearly considered its provisions and, as with the effect of the rest of the act, broadened them… I conclude therefore that so far from moving towards the liberalization of sexual conduct by regarding homosexual practices as acceptable conduct, such indications as there are show a hardening of contrary attitude.”
The Court of Appeal said “gay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution.”
However, in its 2019 ruling on the Motshidiemang and Attorney General, LEGABIBO case the High Court found Batswana were more receptive to homosexuals. The High Court also defended its jurisdiction over the matter.
“In the present matter, it is common cause that the applicant’s case is underpinned by Sections 3, 7, 9 and 15 of the Constitution and this gives imprimatur and seal of approval to our exercise of jurisdiction in the present constitutional adjudication and discourse. In the absence of any clear and specific ouster of the High Court’s jurisdiction on any matter, be it constitutional or not, this court has the necessary jurisdictional potestas and authority to intervene.”
Both Motshidiemang and LEGABIBO have filed their opposition to the Appeal.