Botswana High Court to Hear Decriminalization Case in 2019
GABORONE, Botswana — Botswana, the economic jewel of southern Africa, is set to continue its trailblazing social justice track toward legal equality for LGBTQI+ people. While it has taken longer than expected, the High Court of Botswana has set a new date to hear a case which challenges sections of the penal code which criminalize same-sex sexual relations. While the clauses — inherited from British colonial laws in 1885 — are not exclusively applicable to LGBTQ+ persons, their interpretation has caused grave apprehension to full self expression among members of the population who identify as such.According to human rights organization, LEGABIBO (Lesbians, Gays, Bisexual of Botswana), the hearing of the case challenging the constitutionality of sections 164(a), 164(c) and 167 of the Penal Code will be heard before a full bench of the Botswana High Court, comprising of the Honorable Judge A.B. Tafa, the Honorable Judge M. Leburu and the Honorable Judge J. Dube on March 15. The aforementioned sections criminalize “carnal knowledge of any person against the order of nature” and “indecent practices between persons” (whether in private or public) respectively.
The organization won its registration case against the Botswana government, heard at the Court of Appeal on March 16, 2016, after 11 years of contestation. On this case LEGABIBO is represented by Tshiamo Rantao and supported by the Southern Africa Litigation Center and members and allies of the LGBTQIA+ community.
LEGABIBO Advocacy and Awareness Officer Caine Youngman said the case is “a massive rude awakening to those who are comfortable with the idea that homosexuality is illegal in Botswana.” He added this case “gives a positive image to LGBTQI+ people to know that when they are feeling trampled upon they can approach the court” and “the case is expected to clarify the laws of the land, so the government and ordinary Motswana understand that we are legitimate citizens as much as anyone else.”
There has, historically, been mixed reception of LGBTQI-favorable rulings passed by the courts by the general public as, it would appear, there is little communication and demystification of the necessity and impact of the rulings for people outside of the concerned population. Speaking with internationally-acclaimed, Botswana-based fashion designer Aobakwe Molosiwa of Gilded Sands, he said that for him this case gives an “opportunity to get conversations going because the lack of that attention locally is worrying” adding that it is a chance “to maximize traction; and the consideration we — as the queer community — give this case will drive how the greater community understands who we are. Only through enlightenment can we grow as a nation.” Recently, at the launch of the national observance of 16 days against violence against women and children, the sitting president of Botswana, HE Dr. Mokgweetsi E.K. Masisi, explicitly mentioned people in same-sex relationships also experience violence and must be considered in the commemorations as well as in prevention initiatives. This made him the first occupant of the highest office to speak out on LGBTQIA+ rights while in office.
While Botswana is still lagging on ratifying and domesticating some international human rights related treaties — such as the U.N. Convention on the Rights of Persons with Disabilities — and has been flagged for its questionable press freedom, it appears that the highest courts are willing to address contentious matters when presented. The hope is the efforts of perceived societal minorities will lead to broad-ranging advocacy from many other facets of the community at large to build a socially just democracy. Understanding this, Youngman stated that, “we don’t want backlash from the community once decriminalization has been achieved; we are meeting with dikgosi (royalty), parliamentarians, councilors and community members doing awareness raising.”
Looking at future steps in the advent of a victory favoring the plaintiff, Molosiwa said “it would be a step toward discussing familial issues we as a nation have experienced but never addressed” adding that “this brings forward issues of morality and we can use this as an opportunity to confront the politics which religious factions lean on to vilify us.” Youngman said “it means that as a gay man I don’t have to think about what will happen tomorrow when there is no president who can openly call for respect of LGBTQIA+ persons. As a Motswana gay man, I have other things which are afforded to my heterosexual peers such as marriage and adoption and I can start advocating for these. It means my family will get the peace and quiet they need as they never stop worrying about your safety.”
So, while people around the world celebrate Christmas, the arrival of the New Year, Valentine’s day, and anticipate Easter, LGBTQIA+ persons and their allies in Botswana will be anxiously gearing up for what is hoped to be the end of a leg of a long fought battle to recognize contemporary realities of Batswana against inherited colonial laws. Just as March 16, 2016, will forever be inscribed in Botswana’s LGBTQIA+ history, it may transpire that a three-year gap was what was necessary for the courts to catch up and endow LGBTQIA+ persons with their inalienable rights to recognition as people, protection of the law and freedom.