An obsolete law frowned upon by sexual minorities, repealed by the colonial master Britain yet gaily enforced by the statutes of Botswana is being put to a test.
A full bench of the Botswana High Court, sitting before the Justices Abednego Tafa, Michael Leburu and Jenifer Dube will hear a case challenging the constitutionality of sections 164(a), 164(c) and 167 of the Botswana Penal Code 14 March.
These provisions criminalise same-sex sexual conduct between consenting adults in Botswana and imposes a maximum sentence of seven years imprisonment.
The organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) is admitted as a friend of Court in the proceedings.
LEGABIBO which is represented by Tshiamo Rantao of Rantao and Kewagamang Attorneys seeks to advance submissions before the full bench of the High Court on the practical effect and social impact that sections 164(a), 164(c) and 167 of the Penal Code have on the daily lives and experiences of LGBT persons.
Particularly, the submission illustrates how the criminalisation of same-sex sexual conduct limits LGBT persons’ ability to access basic social services, increases their chances to discrimination, and infringes on their basic human dignity.
“Botswana is a diverse society and the Constitution protects the freedoms and dignity of all persons in Botswana, regardless whether you are gay, lesbian, bisexual transgender or intersex”, says Anna Mmolai-Chalmers, LEGABIBO’s CEO.
She added that “Importantly, this has been acknowledged by our very own President His Excellency Dr. Mokgweetsi Masisi during the commemoration of 16 days of activism against violence on women and children in December 2018.”
Mmolai-Chalmers further said that “There, he emphasised that ‘there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected’…”
Tashwill Esterhuizen, lawyer for LGBT and Sex Workers Rights Programme at the Southern Africa Litigation Centre (SALC) said over the past three years, the Botswana courts have shown themselves to be champions of jurisprudence which acknowledges the rights of LGBT persons and their right to equal protection before the law.
“Through their sound legal reasoning and constitutional jurisprudence, the Botswana courts have set an example for other courts in the region on the important role the courts can and should play in protecting and promoting human rights of all persons, including marginalised groups,” said Esterhuizen.
The lawyer added that “We are confident and hopeful that the court will uphold human rights of the LGBTI community.”
Previously in the so-called “LEGABIBO Registration case”, the Court of Appeal of Botswana held that Botswana is a diverse nation and that all persons, including LGBT persons are entitled to protection of their constitutional rights and dignity.