Court of Appeals Upholds Decriminalization of Same-Sex Relations in Botswana

New York, November 19, 2021 - In 2019 the High Court of Botswana decriminalized same-sex relations. The State appealed the court's decision. Today, on 29 November, 2021, the Court of Appeals of Botswana dismissed the State's appeal. On 11 June 2019, a full bench of the High Court of Botswana ruled unanimously to strike down section 164(a) and (c), and section 167 of the Penal Code which criminalized same-sex relations, or “carnal knowledge against the order of nature” - relics inherited from colonial times. Judges ruled that the provisions are discriminatory and noted that “a democratic society is one that embraces tolerance, diversity and open-mindedness" and that “societal inclusion is central to ending poverty and fostering shared prosperity." The State appealed the court's decision.

The Court of Appeals dismissed the challenge today. The judgment highlights that “there can be no discernible public interest in the continued existence of [these] sections of the Penal Code. They have been rendered unconstitutional by the march of time and change of circumstances.” The judgment further notes that these sections “serve only to stigmatize” and enable law enforcement to intrude into the private lives of citizens, which “is neither in the public interest, nor in the nature of Botswana” (paragraph 115 of the judgment). 

“The courts in Botswana have been trailblazers of progress for years, ruling in 2014 that the state has to register an LGBTIQ organization and in 2019 ruling to shed relics of British colonial rule and decriminalize same-sex relations,” said Maria Sjödin, acting executive director of Outright International. “The Court of Appeals has continued that trend today, stating unequivocally that criminalization of same-sex relations is unconstitutional, outdated and 'not in the nature of Botswana', and recognizing that LGBTIQ people are citizens of Botswana, deserving of protection, not stigmatization, by their State.”

“Today marks another historic victory for human rights around the world,” Katlego K Kolanyane-Kesupile, trans ARTivist from Botswana and former Outright International Religion Fellow. “I believe that Botswana is now positioned to lead our African peers and we, the activists on the ground, must continue to hold those in positions of power accountable to upholding our dignity. For Chief Justice Kirby's final judgement to be one so monumental to LGBTQ+ rights is also the best retirement gift we could give a man who has been part of the courts' growth in recognizing LGBTQ+ people as rights-bearing in Botswana. More must be done, and with this, we will do it confidently with PRIDE!”

 

67 countries continue to explicitly criminalize same-sex relations, with several others using laws on vagrancy, prostitution, morality and others to criminalize same-sex relations. Over the last couple of years, Bhutan and Gabon have also decriminalized same-sex relations. However, a backlash is on the rise. Enhanced criminalization of same-sex relations is proposed in Ghana. In March 2020, the High Court in Singapore dismissed challenges to its ban on same-sex relations and in May 2019 the High Court in Kenya ruled to maintain a colonial era ban on same-sex relations.