Botswana High Court to hear historic legal challenge to gay sex ban

The Botswana High Court will on Thursday hear a case that aims to strike down the criminalisation of same-sex sexual relationships in the country.

The lawsuit, filed by a gay man identified only as LM, against Botswana’s Attorney General, argues that sections 164(a), 164(c) and 165 of the Botswana Penal Code are unconstitutional.

Gay and lesbian people can be prosecuted under these laws, which ban so-called “unnatural offences” and “carnal knowledge of any person against the order of nature.” Penalties include seven years in prison.

The applicant is asking the court to rule that the continued criminalisation of consensual same-sex sexual relationships violates his basic constitutional rights.

The human rights advocacy group, Lesbians, Gays, and Bisexuals of Botswana (Legabibo), has been admitted as amicus curiae or “a friend of the court”.

Legabibo said it has “submitted factual evidence that seeks to demonstrate that continued criminalisation of consensual same-sex sexual acts perpetuates stigma, intolerance, homophobia and violence against members of the LGBT community.”

The organisation will further argue that the decriminalisation of same-sex sexual acts would “not only greatly enhance public health – by assisting with treatment, care and education in the fight against HIV in particular – but it will also affirm basic human rights and the diversity of the Botswana nation.”

In recent years, the courts in Botswana have shown an increasing willingness to protect the rights of LGBTIQ people. In two separate cases in 2017, the Botswana High Court ordered the state to legally recognise the gender identity of transgender persons and to issue the applicants with the relevant identity documents.

In March 2016, Legabibo won a historic court case that saw the government also being ordered to officially acknowledge and register the organisation. In September of that year, the Botswana government kicked out American gay hate Pastor Steven Anderson and his followers who hoped to open a branch of his church in the county.