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June 18, 2019

Botswana decriminalizes same-sex activities in landmark ruling: ‘the state cannot be sheriff in people’s bedrooms’

June 11, 2019
An activist holds up a rainbow flag to celebrate inside Botswana High Court in Gaborone on June 11, where a ruling in favor of decriminalizing homosexuality was handed down. (TSHEKISO TEBALO / AFP/Getty Images)

In a major victory for LGBTQ rights in Southern Africa, Botswana’s highest court has overturned a colonial-era law that criminalized same-sex relationships with penalties of up to seven years in prison.

In a unanimous decision, a panel of three judges ruled Tuesday that sections 164 and 167 of Botswana’s Penal Code, which outlawed “carnal knowledge of any person against the order of nature,” went against the country’s constitution.

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LGBTQ advocates and activists who packed the small courtroom in Gaborone, the country’s capital, erupted in cheer as the judges handed out the landmark decision. “It is not the business of the law to regulate private consensual sexual encounters,” Judge Michael Leburu said.

“What compelling public interest is there necessitating such a law? There is no victim,” he said, adding that “the state cannot be sheriff in people’s bedrooms.”

“Sexual orientation is innate to human beings and is not a fashion statement,” he added.

Anna Mmolai-Chalmer, a coordinator for a group called Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo), celebrated the victory, noting that the winning the long-fought battle is a testament that their hard work has paid off.

“It has taken a long time for our community to be where it is,” she said in a statement. “This incredibly life-changing decision, although it does not right all the wrongs done to individual members of the LGBT community, is a step towards restoring our dignity as human beings.”

“This is a historic ruling for lesbian, gay, bisexual and transgender (LGBT) people in Botswana,” Gunilla Carlsson, the executive director of UNAIDS, wrote shortly after the verdict was read. “It restores privacy, respect and dignity to the country’s LGBT people, and it is a day to celebrate pride, compassion and love. I commend the activists, civil society organizations and community groups that have campaigned so hard for this moment.”

Letsweletse Motshidiemang, 24-year-old a student at the University of Botswana, filed a petition in 2018 questioning the constitutionality of the ban. His lawyers argued that the laws were dated.

After the decision, he was emotional: “Of course I wanted to win, but I didn’t expect it,” he told a CSMonitor reporter, who said that Motshidiemang was “weeping.”

The ruling from the small Southern African nation, largely seen as one of the continent’s most stable democracies, comes after a court in Kenya refused to do the same last month.

“We find the impugned sections [of the penal code] are not unconstitutional. We hereby decline the relief sought and dismiss the consolidated petition,” judge Roselyne Aburili said when the court ruled unanimously to uphold anti-gay laws on May 24.

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The ban on gay sex in both Botswana and Kenya are rooted in British colonial law. Tuesday’s ruling came after Botswana’s Court of Appeal upheld the ban 16 years ago.

Consensual same-sex sexual relations are still considered a crime in at least 67 countries and territories worldwide, and more than two dozen of them are countries in sub-Saharan Africa.

In January, the Southern African nation of Angola also decriminalized same-sex activity and went a step further by banning discrimination based on sexual orientation.

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