Botswana: High Court Strikes Down Sodomy Laws

The court in Letsweletse Motshidiemang v. State found in a unanimous decision that Botswana’s «sodomy laws» violate privacy, liberty, and dignity; are discriminatory; and serve no public interest. LGBTQ activists throughout Africa met the ruling with an outpouring of joy. The ruling is subject to appeal by the government to Botswana’s Court of Appeal, although President Mokgweetsi Masisi has affirmed that all people in Botswana, including people in same-sex relationships, deserve to have their rights protected.

«The High Court recognised that Botswana’s law and policies need to protect the rights of all, regardless of sexual orientation», said Neela Ghoshal, senior LGBTQ rights researcher at Human Rights Watch. «The court ruling is a victory both for LGBTQ people in Botswana and for LGBTQ people and their advocates throughout Africa».

In Motshidiemang, the High Court said that constitutional principles related to dignity and equality were in the balance. While the lawyer for the state had argued that «the law should reflect on the values of society», petitioners countered that such laws limit access to social services, infringe upon human dignity, and constitute an unjustified violation of non-discrimination principles.

Activists in the courtroom live-tweeting the ruling said the judges found that culture cannot justify violation of universal rights. The court stated that sodomy laws belong «in the museum or the archives», and should not govern present-day life.

Prior to independence in 1966, Botswana was part of Bechuanaland, a British protectorate. The country’s anti-homosexuality laws are a legacy of British imperialism. Article 164 of the penal code punishes «carnal knowledge against the order of nature with up to seven years in prison, while article 167 punishes «indecent practices between persons» with an unspecified sentence. In an odd twist, when revising its laws to uphold gender equality in 1998, Botswana «equalised» its «indecent practices» law to criminalise same-sex conduct between women as well as men.

In an earlier challenge, the Court of Appeal in 2003 upheld a 1995 conviction under article 164. But in recent years, Botswana has taken a number of steps toward recognising LGBT equality. In September 2010, Botswana amended its Employment Act to protect against discrimination in the termination of employment contracts based on sexual orientation. Former president Festus Mogae began speaking out in support of decriminalisation of same-sex conduct in 2011, three years after he left office, and has continued to be a vocal advocate of the rights of LGBTQ people.

In 2014, the High Court ruled that the registrar of nongovernmental organisations had erred in 2012 in refusing to register the group Lesbians, Gays, and Bisexuals of Botswana (Legabibo). The Court of Appeal upheld the ruling in 2016, stating that «fundamental freedoms are to be enjoyed by every member of every class of society». The same year, Botswana deported an American pastor who had stated that gay people should be «stoned to death». In 2017, the High Court ruled that a transgender man had the right to change his name and gender marker on his official documents, noting that failure to do so would violate his right to privacy.

Botswana’s position has not always been consistent. In 2016, Botswana led the African group at the United Nations Human Rights Council to oppose the mandate of the independent expert on violence and discrimination based on sexual orientation and gender identity. Botswana also rejected recommendations to decriminalise homosexual conduct during its review before the UN Human Rights Council in 2018.

In striking down its archaic «unnatural offences» laws, Botswana joins a global shift away from the criminalisation of consensual same-sex conduct. In January, Angola issued a revised penal code that no longer punished so-called «vices against nature». Other African countries that have revoked anti-homosexuality laws through penal code reform in recent years include Seychelles, Mozambique, Sao Tome and Principe, and Lesotho.

India decriminalised same-sex relations through a landmark court ruling in 2018, as did Trinidad and Tobago, while Belize’s Supreme Court struck down its sodomy law in 2016. Palau, Nauru, and Northern Cyprus have decriminalised homosexual conduct through legal reform in recent years.

However, there are exceptions to the trend of liberalisation of laws regarding sexual conduct. Kenya upheld its sodomy laws in May 2019, claiming the laws did not discriminate on the basis of sexual orientation while simultaneously suggesting that the constitutional right to privacy can only be fully enjoyed by married heterosexual couples. At least 68 countries in the world, 33 of them in Africa, still have laws on the books that outlaw consensual same-sex relations.

«Botswana’s High Court has provided a ray of hope to millions around the world who live in jurisdictions that still criminalise same-sex conduct», Ghoshal said. «Botswana’s government should embrace this ruling and affirm the full personhood of its LGBTQ population».