Botswana High Court to hear gay sex ban appeal

The Botswana High Court is set to hear a bid by the government to restore the country’s former ban on same-sex sexuality, but activists remain hopeful.

In June 2019, a full bench of the Botswana High Court unanimously found that the criminalisation of consensual same-sex sexual activities violates the constitutional rights of LGBTIQ people to dignity, liberty, privacy and equality.

Various sections of the penal code that prohibited “carnal knowledge of a person against the order of nature” and attracted a term of imprisonment of seven years were thereby struck down.

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 against the landmark ruling.

It’s now been confirmed that the High Court will finally hear the appeal on 12 October which, if successful, could once again criminalise LGBTIQ people and subject them to imprisonment.

The human rights advocacy group Lesbians, Gays and Bisexuals of Botswana (Legabibo) says that it hopes that the hearing will bring the matter to a positive close and lead to further progress.

“We are excited and happy that the date for the appeal has finally been set. The LGBTIQ community is very excited and look forward to put the matter to rest,” says Legabibo CEO Thato Moruti in a statement.

The organisation believes that the 2019 judgment has already led to positive change in Botswana. It noted an Afrobarometer survey conducted shortly after the High Court’s decision which recorded a 10-percentage-point gain in tolerant attitudes towards LGBTIQ persons.

Botswana’s Five-Year Plan for Removing Human Rights-Related Barriers to Accessing HIV and Health Services (2020-2025) also noted that “the recent overturning of laws criminalising same-sex sex removes a significant human rights barrier for gay men, men who have sex with men and other LGBT persons.”

Moruti argues that a ruling against the government’s appeal by the court will be “a great step in the right direction to shift and change systems, reform laws and policies to ensure that the LGBTIQ communities not only enjoy their right to be human, but also enjoy legal protection against discrimination on grounds of sexual orientation and gender identity.”