Botswana | Disappointment at government’s appeal of same-sex ruling

Activists outside the Botswana High Court (Pic: Southern Africa Litigation Centre / Twitter)

LGBTI activists in Botswana have spoken out against the attorney general’s decision to appeal the historic court ruling legalising same-sex sexuality.

On 11 June, the Botswana High Court found in a unanimous judgment that the provisions in the penal code outlawing homosexuality were unconstitutional as they violated the right to privacy, liberty and dignity, are discriminatory, and serve no public interest.

A month later, Attorney General Adv. Abraham M. Keetshabe said that “the High Court erred in arriving at this conclusion” and announced that he would lodge an appeal, which he did on 22 July.

In his appeal, Keetshabe argued that the High Court overstepped its boundaries by overruling an earlier decision of the Court of Appeal in Kanane v State in 2003. In that case, the Court of Appeal said that, in 2003, the circumstances and the time for the decriminalisation of same-sex sexual acts or homosexual practices had not yet arrived.

By 2019, however, the High Court signalled that the time had indeed arrived to remove the provisions from the Penal Code. The Court noted that the facts and circumstances of this case were fundamentally different from when Kanane was decided by the Court of Appeal, 16 years earlier.

The High Court also noted that evidence placed before it demonstrated that the continued criminalisation of consensual adult same-sex sexual acts had a range of harmful effects on the daily lives of LGBTI persons in Botswana, including causing them to experience high levels of violence and inhibiting their access to healthcare and other services.

Same-sex sexual acts between adults remain legal in Botswana – for now

On Tuesday, Botswana’s’ LGBTI rights organisation, Legabibo, said that while it respects and acknowledges the state’s right to appeal any judgment, it felt “deep disappointment that the government continues to invest time and resources” on appealing the decision.

“Instead of appealing the well-reasoned decision by three judges of our High Court, the state should have taken active steps and measures to ensure equal rights and opportunities and that all Batswana are free from all forms of structural stigma and discrimination in all areas of society and our lives,” said the organisation in a statement.

“Abiding by the High Court‟s decision to decriminalise consensual same-sex sexual acts between adults would, therefore, have sent a positive message and would have been an important step to demonstrate the government’s commitment towards fulfilling and upholding our shared National Vision, aspirations and the broader human rights framework in our Constitution.”

Legabibo argues that the High Court ruling was about more than the decriminalisation of consensual same-sex sexual acts between adult persons, “it was about our shared humanity, values and aspirations of being a fairer, more just and compassionate society.”

Legabibo pointed out that, despite the appeal, consensual same-sex sexual acts between adult persons in private remain decriminalised in Botswana for now.

“This will continue to be the position unless the Court of Appeal should determine otherwise,” said the group. “We, therefore, urge members of the LGBTI community to speak out against any threat or discrimination that they might experience as a result of perceived criminalisation of these acts.”

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