LEGABIBO.png

Botswana High Court rules to decriminalise same-sex sexual conduct

The High Court of Botswana, on Tuesday 11th June 2019, issued a unanimous judgment in which it declared sections of Botswana’s Penal Code criminalising same-sex sexual conduct unconstitutional on the basis that these provisions violated the rights to equality, dignity, liberty and privacy of LGBT persons. Sections 164(a), 164(c) and 165, similarly to section 145 of Uganda’s Penal Code Act, create the offence of ‘having carnal knowledge against the order of nature’ which is punishable with imprisonment for 7 years.  

The Court questioned the purpose of a law criminalising consensual and private expressions of love and expressed that such provisions are an over-regulation amounting to the infringement of fundamental human rights. The Court also expressed that such a criminalisation of love ‘dilutes compassion and tolerance’.

This decision comes as a welcome beacon of hope for LGBT activists in sub-Saharan Africa, following the disappointing May 2019 judgment in the High Court of Kenya, which upheld the same-sex prohibition in Kenya’s Penal Code, despite the glaring constitutional invalidity of the provision. Decriminalisation of same-sex sexual conduct is an essential step toward equality and the fulfilment of fundamental rights of LGBT persons. It is a step which ought to be taken in all African countries boasting constitutional protections of human rights of all.