Consensual sex involving two adults of the same sex could soon cease to be a criminal offence in Botswana. That is if international legal practice should offer basis for reference.
A landmark ruling, last week by India’s New Delhi Highest Court that Section 377 of that country’s constitution be scrapped as it criminalized gay sex, and ‘indeed, anything other than heterosexual vaginal intercourse in India’, has set tongues wagging.
Even though the ruling applies to India’s capital city, it has far reaching implications for both India’s national law and, further afield, it gives credence to the ongoing worldwide search for legitimising what sections of the population still regard as ‘beastly and morally depraved’ practices.
Although anti-gay or homosexuality laws have rarely, if ever, been used to secure conviction in courts of law for those found faulting the relevant statutes, in many countries around the world, there have always been allegations of harassment and blackmail, including rape in prisons and in society, generally.
In this context, many view the verdict as trend setting, as it will pave way for sexual minorities to lead open lives, and ultimately provide them with legal equality.
Moreover, anti-gay laws are generally seen as an impediment to fighting HIV and AIDS among people who engage in same sex relationships.
To this end, Uyapo Ndadi, Acting Director of BONELA, commended the decision as very inspiring, that it vindicates those who advocated for the decriminalization of homosexuality.
Prisca Mogapi, who associates as gay and lesbian, has said, “For the gay community in Botswana, it’s a great joy that the High Court of a country like India, known for its diverse religious background, and its relatively closed and conservative culture, has found it fitting to make such ruling in favour of legal equality for the gay community.”
This is a further pointer to the fact that the notion of ‘culture,’ which is peddled by many in Botswana, although few have dared to define it, cannot anymore hold water.
More importantly, in the context of Botswana, this comes in the wake of a statutory notice of intention to bring legal proceedings against Government, served to the Attorney General just about 10 weeks ago, by Mogapi as first claimant and a certain Caine Youngman as second claimant.
The claimants, whose case is being handled by Botswana Network for Ethics, Law and HIV/AIDS, are individuals who associate as gays, lesbians and bisexuals in Botswana.
In addition, they are members of an association that was refused registration by the registrar of societies, called Lesbians, Gays, and Bisexuals of Botswana, also known as LEGABIBO, on the basis that the Constitution, and section 7 (2) of the Societies Act, does not recognize homosexuals.
According to the contents of the statutory notice, the objectives of LEGABIBO are to integrate a legal, ethical and human rights dimension into the sexual, reproductive and health rights of all people without discrimination on any basis, whatsoever, and to ensure participation of lesbian, gay and bisexual (LGBTI) people in policy formulation.
It was further intended through this organization to engage in advocacy work and to support public health interests by advocating for respect for what are otherwise referred to as sexual minorities as well as conduct research into human rights situations of this and other marginalized groups.
But basing on the political dynamics in India alone, plus Botswana’s largely conservative political leadership, who to this date refuse to ratify the SADC gender protocol for reasons suspected to hinge more on cultural stereotypes, it might be too early to celebrate.
That gay sex is immoral and unnatural as well as uncultured, and that society does not approve of it has always been the popular excuse advanced by those opposed to the “sexual minorities” rights.
So much that speculation is rife that even if government should elect not to appeal the ruling, religious groups will most certainly go the length and breadth to reverse it, stated Ravichandran.
Whether they can win, is a separate matter.
The New Delhi ruling is a culmination of about eight years of legal wrangling, and broad campaign organized by gay rights activists, authors and celebrities, as well as lawyers and AIDS awareness groups.
The same court is said to have ruled some years ago that ‘Society’s disapproval was sufficient basis’ enough for the anti-gay law to remain in force.
But somehow, things keep changing.