The Botswana Government’s decision to postpone parliamentary discussion on a bill to remove Sections 164(a) and (c) from the penal code, which criminalise same-sex relations, has triggered fresh concerns among human rights activists.
Their bone of contention is that the government should by now have alignined the law with a 2021 Court of Appeal decision which struck down the said contentious sections.
The human right activists’ concerns are contained in a new report by Amnesty International, which states that the bill’s deferral, originally anticipated to align the penal code with a 2021 Court of Appeal decision striking down the said sections, could exacerbate discrimination against the lesbian, gay, bisexual, and transgender (LGBTQ)+ community.
The report said in July 2023, it was expected that parliament would pass the bill, marking a crucial victory for gay rights. According to Amnesty International, however, the bill was deferred, a move that the international human rights organisation describes as alarming. The organisation highlighted the impact of this decision, pointing out the growing polarization and the potential for a referendum that could nullify the Court of Appeal’s ruling.
In 2021, gay rights activists had celebrated a significant triumph when the Court of Appeal upheld a High Court decision decriminalizing same-sex sexual activities in Botswana. This victory was overshadowed by the recent deferral, prompted by protests from religious groups. Minister of Justice Machana Shamukuni addressed parliament, stating that public concerns necessitated further consultation to ensure all stakeholders’ views were considered in the legislative process. Consequently, the bill was withdrawn from the parliamentary session, which concluded in August 2023, with the possibility of future reconsideration.
An activist from BlackQueerDox, a grassroots feminist collective in Botswana, expressed frustration, noting the strategic organization of anti-gender actors and the uncertainty surrounding the upcoming elections.
“There’s a looming sense of polarization in the air, and we’re left in the dark about what might unfold. Perhaps the most worrisome aspect is their push for a referendum, which could potentially nullify the Court of Appeal’s decision,” a gay activist was quoted by Amnesty International as saying.
Amnesty International’s report also cited WoMen Against Rape (WAR), an NGO based in Maun, which emphasized the 2021 Court of Appeal’s decision as a monumental stride towards an inclusive society, now threatened by emerging governmental trends.
“The decision represented a monumental stride towards building a more inclusive and progressive society, where every citizen’s dignity and rights are respected, irrespective of their sexual orientation. However, we are deeply troubled by the emerging trends in our government’s parliament, wherein certain factions are seeking to erode the hard-earned progress on equality and non-discrimination,” WAR was quoted as saying by Amnesty International.
The human rights organisation pointed out that this was not the first instance of the Botswana government failing to adhere to court rulings impacting LGBTQ+ rights. In 2017, the High Court had ruled in favor of transgender rights in the ND v. Attorney General case, instructing the government to allow changes in gender markers on identity documents without unnecessary legal barriers. Despite this, numerous transgender persons in Botswana continue to face challenges in legal gender recognition.
Amnesty International highlighted that in 2019, the High Court’s decision in the Letsweletse Motshidiemang v. Attorney General case had decriminalized consensual same-sex acts, interpreting “sex” in the Constitution to include “sexual orientation.” The government’s unsuccessful appeal of this ruling was followed by a reaffirmation from the Court of Appeal in 2021, declaring Sections 164(a) and (c) unconstitutional.
The organisation reported that President Mokgweetsi Masisi had assured LEGABIBO, an LGBTQ+ rights NGO, of the government’s commitment to democratic governance and the rule of law, following the Court of Appeal’s decision. However, in early July 2023, protests erupted in Molepolole and later in Gaborone, led by religious groups opposing the bill to legalize consensual same-sex acts. The demonstrations featured slogans such as “we say no to homosexuality” and “protect our children,” highlighting the deep-seated opposition faced by LGBTQ+ rights activists in Botswana.
Amnesty International concluded by expressing concern over the government’s inconsistent adherence to court rulings and the ongoing challenges faced by the LGBTQ+ community in Botswana.
