‘Not a fashion statement’: Botswana legalises gay sex

Nairobi, Keny: A high court in Botswana has struck down two colonial-era laws, effectively legalising gay sex and sending a message to other African nations only weeks after Kenya's High Court upheld laws that criminalise gay sex.

Reading the three-judge unanimous ruling in front of a packed courtroom, Botswana Justice Michael Leburu said that sexual orientation "is not a fashion statement" and that the laws as they stood violated citizens' rights to privacy. While seldom enforced, the laws carried the possibility of up to a seven-year jail sentence.

Activists celebrate outside the High Court in Gaborone, Botswana after the country became the latest country to decriminalise gay sex.Credit:AP

"It is not the business of the law to regulate the private behaviour of two consenting adults," Leburu said.

The case against the laws was brought by an anonymous gay man, identified only by the initials L.M.

"We are not looking for people to agree with homosexuality but to be tolerant," he wrote in his deposition.

When the case was brought before the court, a lawyer for the government had argued that the law should not be overturned because it reflected the values of Botswana's society, and pressed the challengers to provide evidence that those values had changed.

Leburu said the laws were "discriminatory" toward gay people and violated Botswana's constitution, arguing that overturning them was a matter of protecting human rights.

Activists celebrate their victory inside the High Court in Gaborone, Botswana.Credit:AP

Gay sex is criminalised in 32 of 54 African countries, according to Human Rights Watch, many of which inherited penal codes from colonial powers such as Britain. The subject is widely seen as taboo, and discrimination and harassment are rife.

Last month, the Kenyan court heard a similar case but dismissed it. Other countries such as Mozambique and Seychelles have simply erased mention of gay sex from their penal codes during the rewriting process that has accompanied constitutional reform.

The Botswana ruling came less than a month after Kenya’s High Court had upheld similar sections of its own penal code in another closely watched case.Credit:AP

Botswana's powerful neighbour, South Africa became the first nation on the continent to decriminalise homosexuality in 1998, when the Johannesburg High Court ruled that the nation's sodomy laws violated the country's newly adopted, post-apartheid constitution. In 2006, it legalised gay marriage, becoming the fifth country in the world to do so.

But despite South Africa's tolerant laws, gay and transgender people remain the target of violence there, exemplifying the wide disparities in some African countries between what the legal code says and how authorities choose to enforce it.

Since 2010, several more countries in Southern Africa have decriminalised same-sex relations, including Angola and Lesotho.

These changes often followed general efforts to reform the penal code and campaigns by public health officials to counter the spread of HIV, said Neela Ghoshal, a senior researcher with Human Rights Watch.

She said that broad societal movements, such as the end of apartheid in South Africa in the 1990s or the Arab Spring uprising that began in Tunisia in 2010, had also created space for gay rights movements to grow.

Courts in other former British colonies outside Africa have made decisions similar to that of Botswana. Leburu cited India's ruling in 2018 as one precedent on which his own decision was built.

"It has taken a long time for our community to be where it is," said Anna Mmolai-Chalmers, the head of Lesbians, Gays and Bisexuals of Botswana, or LEGABIBO, the most prominent of Botswana's LGBT-rights organisations. "This incredibly life-changing decision, although it does not right all the wrongs done to individual members of the LGBT community, is a step toward restoring our dignity as human beings."

Some governments have taken an active role in cracking down on gay people. In Egypt, Ghoshal said, movements for gay rights were stifled after the Arab Spring by the rise of President Abdel-Fattah al-Sissi, and police began to target activists.

"There probably are more people in prison in an LGBT rights context in Egypt than in any other place in the world," she said.

Similarly, Uganda's legislature has adopted hostile positions toward gay people, in part influenced by conservative evangelical Christian ministers, said Adotei Akwei, deputy director for advocacy and government relations for Amnesty International. A Ugandan court struck down a punitive anti-gay law in 2014, but left open the possibility that the measure could be revived.

Botswana, which is sparsely populated and home to just over 2 million people, is one of Africa's most stable democracies. The country is scheduled to hold elections in October, which are already being hotly contested. The rights of lesbian, gay, bisexual and transgender people have not figured centrally in the campaign, but President Mokgweetsi Masisi has expressed his support for the community.

"Just like other citizens, they deserve to have their rights protected," the President said at a December gathering.

The ruling in Botswana could provide precedent for other former British colonies to strike down identical clauses in their penal codes. The language of the ruling was unusually strong and unequivocal.

"What regulatory joy and solace is derived by the law, when it proscribes and criminalises such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct?" wrote Leburu. "Any criminalisation of love or finding fulfillment in love dilutes compassion and tolerance."

The Washington Post, The New York Times

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