The court ruled unanimously to strike down sections of Botswana’s penal code that punished homosexuality with up to seven years in prison on the basis they were unconstitutional.
“Human dignity is harmed when minority groups are marginalised,” Judge Michael Leburu told a packed courtroom in the capital Gaborone, adding that the ban was “discriminatory”.
The decision came as a major victory for lesbian, gay, bisexual and transgender (LGBT) activists in Botswana, who have long fought to decriminalise homosexuality.
“I’m in a state of disbelief. I still have to digest the judgement,” Anna Chalmers, CEO of Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), which joined the case as a friend of the court, told FRANCE 24. “It goes a long way towards giving us our freedom.”
BREAKING NEWS! Botswana High Court today ruled to scrapped laws that criminalise consensual same-sex relations and impose up to seven years in prison.#Repeal164 #DecrimBotswana #ReBatswana pic.twitter.com/PJ7tyP4z79
— #LEGABIBO (@legabiboadvo) June 11, 2019
Botswana’s laws on homosexuality were first introduced by Britain during colonialisation. They were later incorporated into the country’s penal code after it won independence in 1966. Known as Section 164, the legislation prohibited all acts “against the order of nature”.
In 2018, Letsweletse Motshidiemang, a student at the University of Botswana, filed a petition at the High Court questioning the constitutionality of Section 164 and other provisions of the law. His lawyers argued that they were dated, pointing to society’s growing acceptance of same-sex relationships as evidence.
In recent years, Botswana has made a number of strides for LGBT rights. The country has outlawed workplace discrimination based on sexual orientation, and in 2017, the High Court affirmed a transgender woman’s right to be recognised as female.
More recently, Botswana’s President Mokgweetsi Masisi voiced his support for the LGBT community, saying: “Just like other citizens, they deserve to have their rights protected”.
Homophobia in Africa
Botswana is just the latest African nation to legalise same-sex relations. Earlier this year, Angola took similar measures, while Mozambique decriminalised gay sex in 2015. In South Africa, homosexuality has been legal since the end of Apartheid, in 1996.
Yet homophobia remains a serious issue across the continent. Of the more than 70 countries in the world that still ban same-sex relations, roughly half are in Africa.
Just last month, Kenya’s High Court ruled to uphold the country’s nearly century-old law prohibiting homosexuality, in a decision Human Rights Watch decried as “a step backwards”.
Other countries have moved to tighten laws. In 2014, Uganda passed legislation known as the Anti-Homosexuality Act, which made same-sex relations punishable by life in prison. The country’s Constitutional Court later repealed the law on a legal technicality, but homosexuality still carries a prison sentence.
Meanwhile, in other nations such as Mauritania, northern Nigeria, Sudan and southern Somalia, gay sex is punishable by death.
A 2013 study by the Pew Research Center found that of all areas surveyed, homosexuality was most widely rejected in Africa.
“Publics in Africa and in predominantly Muslim countries remain among the least accepting of homosexuality,” the report said.
In Botswana, however, there are hopes that Tuesday’s ruling will shift attitudes towards LGBT rights.
“It changes a lot. It changes the idea of criminalising human beings, of criminalising love. It helps the dignity of the LGBT community, it helps the rights of the LGBT community,” Chalmers said.