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On November 29, five judges from the Court of Appeal unanimously ruled that criminalizing same-sex relationships in Botswana was a violation of the constitutional rights of LGBT+ individuals to dignity, liberty, privacy, and equality. The decision upheld a 2019 High Court of Botswana judgment that struck down legislation that criminalized same-sex sexual relations. This appeal was the third to be heard by the Court of Appeal concerning sections of the penal statutes challenged as breaching the fundamental rights of members of the LGBTIQ+ community.
LGBT History of Botswana
Homosexuality has typically been a taboo subject in Botswana. However, in recent years, Botswana has seen advances in the societal perceptions of LGBT people and LGBT rights.
In 2010 and 2011, the former President, Festus Mogae spoke out against discrimination for sexual orientation and called to legalize homosexuality. His views were extremely controversial, as most of Botswana had a very negative opinion of homosexuality. He made several strides in an effort to protect the LGBT community, he proposed decriminalizing homosexuality and providing condoms for prisons in an effort to protect LGBT citizens from HIV/AIDS, which 17% of the population had at the time. In an interview with BBC, he said, “To protect them and their clients from being infected, you have to assist them to protect themselves. I don’t think by arresting them you help them.”
In 2018, President Mokgweetsi Masisi spoke about his support for LGBT rights during Botswana’s 2018 commemorations of the 16 days of activism against violence against women and children. Masisi stated, “There are also many people of same-sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected.” This came a week after a popular social media post regarding the beating of a transgender woman in Gaborone.
In June 2019, the ruling Botswana Democratic Party (BDP) welcomed the judgment of the High Court that decriminalized homosexuality. Before the ruling, engaging in gay sex in Botswana was punishable by up to seven years in prison.
Moving Forward
The executive director of The Southern African Litigation Center, Anna Mmolai-Chalmers, said the victory is not just for the LGBTQ community, but all vulnerable groups in Botswana. In an interview with Voice of America, she said, “It [the ruling] has given the activists the tools to talk to the public to change public opinion, to talk to traditional and religious leaders. There are a lot of human rights clauses that also talk to persons with disabilities, to use the case, because it is not just for LGBTQ, it’s for a whole vulnerable community.”
Being LGBT is still illegal in many African countries, some still carrying out the death penalty. However, countries, such as Botswana, that take measures to protect their LGBT citizens, open the door to the conversation surrounding equal rights.
