Decriminalisation of same-sex conduct In Botswana marks advancements for sexual rights in Africa

JOHANNESBURG, SOUTH AFRICA. The Coalition of African Lesbians  salutes the recent decision of Botswana’s Gaborone High Court to strike Section 164, effectively decriminalising same-sex relations in Botswana. We would like to congratulate our member, LEGABIBO, for their tireless work in advocating for this landmark decision. Along with Angola that decriminialised same-sex relations earlier this year, this case signals a definite shift in sexuality based organising and activism in the sub-region.

The adoption of colonial laws in 1965 in the independence constitution effectively criminalised same-sex relations. The recent judgement follows a 20 year long struggle for LGBTQ organisations, such as LEGABIBO, to be lawfully recognised and culminated in the recent judgement to #Repeal164. While Botswana’s prosecutor has recently signaled their intention to appeal, LEGABIBO’s Executive Director, Anna Mmolai-Chalmers, is not especially surprised by the government’s decision: “[…] appealing is expected especially with regard to a high profile case that challenges what most people, especially religious and traditional leaders, see as their “religion and culture”. Legally arguing the case at the Court of appeal signals closing the matter for good, but on a social level, questioning this beautifully human judgement brings doubts over our government’s commitment to upholding human rights”. 


The Botswana case focused on 3 main fundamental rights: the right to protection from discrimination, the right to privacy and the right to personal liberty.  In delivering the judgement, the judges asked why we need to have these laws that “proscribe and criminalise … conduct of two consenting adults, expressing and professing love to each other within their secluded sphere?”.  

The judges questioned the purpose of laws over-regulating human conduct and expression. With regard to public morality, the court maintained that the definitions and application of morality differ from one person to the other and that public opinion is a frivolous measure in issues that do not cause harm to the state of peace and security of the country. The judge reiterated that public opinion and outcry formed in relation to what is done  in private by consenting adults is prejudicial, and a marginalisation of a minority. In summary, the court has affirmed the bodily autonomy of non-heteronormative people and has reaffirmed sexuality and sexual determination as fundamental human rights. 

2 steps forward, 1 step back

While the decriminalisation of same-sex conduct both in Botswana and Angola this year, and in Mozambique in 2015, are definitely steps forward in our advocacy on the continent, a similar challenge to the court in Kenya in May 2019 was unsuccesful. In the case of Angola, the reform came through a parliamentary bill, which ostensibly involved parliamentarians and representatives of the state consulting with their constituents ahead of pushing forward, making it a “popular” initiative. In Botswana’s case, the decriminalisation has come through the courts, much like the Kenyan attempt. In Botswana, a weighing of the penal code against the constitution led the full bench of the high court to rule that the contested provisions were unconstitutional whereas in Kenya the court upheld previous regional precedent. 

With the ruling of the Botswana High Court, it became even more apparent that there was a difference in the political climate of the two countries, affecting legal outcomes, with Botswana’s political establishment being more open to a progressive ruling on this issue. Indeed in 2018, the current President Masisi of Botswana, spoke about the need for GBV protections to be extended to same-sex couples.

Although there are signs of progress in the region, Tanzania and Uganda, just to name a few examples, continue to conduct excessive repression against women and people who do not conform to patriarchal and hetero-normative values. 

Resolution 275, which was adopted by the African Commission on Human and Peoples Rights (ACHPR) in 2014, speaks to the protection from violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity. A logical extension of Resolution 275 is for African States to follow Botswana and Angola’s lead by decriminalising same-sex conduct. The withdrawal of CAL’s observer status by the ACHPR in 2018, however, illustrates to us the barriers still faced by sexual rights and women’s rights advocates, as African States increasingly use conservative and fundamentalist language, hiding under the banner of ‘African values’ to promote populist agendas. The Executive Council of the African Union, in demanding the withdrawal of CALs observer status, shows the unwillingness of States to be held accountable for human rights violations thus threatening the independence of the Commission.  

CAL’s work  in Botswana with Masakhane collectives, with LEGABIBO and with feminist activists, reminds us that a range of strategies must be used to enact change. As we pursue advocacy at a national and regional level, it is crucial that we continue to enable the creation of safe spaces for Lesbian, Bisexual and Transgender women to strengthen their consciousness, analysis and advocacy skills, thus strengthening our collective organising power. 

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About CAL

The Coalition of African Lesbians is a feminist, activist and pan Africanist network of 14 organisations in 11 countries in sub-Saharan Africa committed to advancing freedom, justice and bodily autonomy for all women on the African continent and beyond. For more information about CAL please consult our website: http://www.cal.org.za/about-us/why-we-exist/

For more information please contact:

Caroline
Media & Communications Manager

caroline@cal.org.za 

Amanda
Media & Communications Officer

amanda@cal.org.za

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