Botswana appeals court upholds decriminalization of same-sex sexual relations
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Botswana appeals court upholds decriminalization of same-sex sexual relations

The Botswana Court of Appeal in a unanimous full bench decision Monday upheld a 2019 High Court of Botswana judgment that struck down penal provisions criminalizing same-sex sexual relations.

Judge President Kirby, speaking for Justices Ranowane, Lesetedi, Gaongalelwe and Garekwe, dismissed the appeal filed by the attorney general against the high court’s judgment in Letsweletse Motshidiemang v Attorney General. That judgment struck down as unconstitutional sections 164(a) and 164(c) of the Botswana Penal Code, which prohibited a person from having or permitting another person to have “carnal knowledge against the order of nature” and prescribed imprisonment of up to seven years for such offenses.

Motshidiemang, a gay man, had moved the high court in 2016. He stated that the criminalization of his “only means of full sexual expression” violated his rights to liberty, dignity and equal protection of the law under section 3 and his right to protection from discrimination on the basis of sexual orientation under section 15 of the Botswana Constitution.

The court agreed with Motshidiemang and also held the provisions violative of section 9 of the constitution, which deals with the right to privacy. Following the judgment, a survey recorded a notable decrease in intolerance against the LGBTQ+ community.

However, the attorney general appealed against this decision, largely on grounds that it constituted judicial usurpation of legislative powers. The attorney general also claimed that the decision “departed in an impermissible way” from the 2003 judgment Kanane v. The State, in which the appeals court held that section 164(c) was constitutional because gay men and women did not then constitute a “group or class requiring constitutional protection.”

The appeals court, however, found public attitude on homosexuality in Botswana had changed sufficiently to permit the striking down of the penal provisions — a possibility expressly recognized in Kanane. The court also noted it was empowered by section 18(2) of the constitution to strike down laws that do not pass constitutional muster. However, it chose to retain section 165 since it prescribes the punishment for bestial offenses under section 164(b).

The widely hailed decision makes the appeals court only the second apex court in Africa to decriminalize same-sex relations. The South Africa Constitutional Court was the first to do so in 1999.