Botswana High Court Hearing on Decriminalization of Homosexuality Begins

Update: High Court of Botswana will deliver a ruling on 11 June 2019

Gaborone, Botswana – On 14 March, 2019, a full bench of the High Court of Botswana will begin hearing arguments in a case challenging the legality of section 164(a) and (c), and section 167 of the penal code which criminalize same-sex relations, or “carnal knowledge against the order of nature”, and prescribe a prison sentence of up to 7 years for those found guilty. The law is a relic, in the case of Botswana, left over from former British rule. Botswana, along with Uganda, Singapore, Qatar, Sri Lanka, and others, is one of around 68 countries where same-sex relations are still criminalized.

While discrimination, harassment, and violence are ripe against LGBTIQ people in Botswana, the last few years have brought about significant change, much of it trail-blazed by the nation’s High Court. In 2014 the High Court ruled that the government had to allow the registration of LEGABIBO, the country’s leading LGBTIQ organization. In 2017, in two separate cases – one concerning a trans man, and the other a trans woman - the High Court ruled that the refusal of the National Registration to change the gender marker of trans people violates their rights to dignity, privacy, freedom of expression, equal protection under the law.

If the High Court of Botswana continues its current trend of upholding civil liberties and the human rights of all, including LGBTIQ people, and comes to a positive ruling in this case, Botswana will join Angola, Seychelles, India, and others, who have recently scrapped similar colonial-era laws.

Katlego K Kolanyane-Kesupile trans ARTivist from Botswana, and OutRight Action International’s Religion Fellow comments:

“This case marks a pivotal moment in Botswana's legal journey of recognizing LGBTQIA+ persons as rights bearers. This inherited, colonial-era law has hung a dark cloud over our lives and, by association, affected our access to public services, our families and our ability to engage as full citizens. We will watch the course of the case with hope for a positive, affirming outcome.”

The LGBTIQ civil society organization LEGABIBO has been admitted as a friend of the court in these proceedings and will make submissions in that capacity.

After the initial hearing on 14 March, the court could take several months to deliberate and come to a verdict.

Read LEGABIBO’s press release on the opening of the case here, and follow developments under these hashtags: #Repeal164 #DecrimBotswana.