RALF October Newsletter: #DecrimBotswana

In June 2019 Botswana’s Gaborone High Court decriminalised  same-sex relations in Botswana, effectively declaring that 164(a) and 165 of the Botswana Penal Code violated the rights to liberty and dignity, privacy, and freedom from discrimination. This after an applicant, identifying as a gay man, challenged the constitutionality of 164(a) and 165. 

Over the last decade the Botswana High Court has ruled on the side of autonomy by :

  • Banning discrimination on the basis of sexual orientation in the workplace in 2010
  • Ordering the government , in 2016, to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) an LGBTI advocacy group and member of CAL 
  • Ruling, in 2017, that transgender Batswana have a constitutional right to change their legal gender

After the decriminalisation of same-sex relations in 2019, the government of Botswana indicated its plan to appeal the judgment, with Botswana’s Attorney General Abraham Keetshabe stating that he thought the high court of Botswana erred in arriving at its conclusion.

In response to the government’s plan to appeal the judgment, Anna Mmolai-Chalmers, then Chief Operating Officer of LEGABIBO, stated:

“… 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 appeal hearing took place on 12 October 2021

Advocate Sidney Pilane of the Attorney General’s Chambers who represented the State, based some of his arguments on the following:

  • The non-discrimination clause in the constitution states that Batswana shall not be discriminated against on the basis of race, sex, etc. In the 2019 judgement the bench assumed ‘sex’ to be inclusive of sexual orientation. Advocate Pilane queried this interpretation. 
  • Section 59 specifically states that the non-discrimination section of the constitution does not apply to laws predating the constitution and therefore did not apply to the penal code which was instituted two years prior to the constitution

According to SALC “The criminalisation of consensual same-sex sexual acts infringes the rights to liberty, dignity, privacy, freedom from discrimination and the right to equal protection of the law. The criminalisation of consensual sexual relationships is degrading, humiliating, and invasive and violates a person’s core dignity. Criminalisation allows police officers, prosecutors and judicial officers to scrutinise and assume control of the most intimate relationships of LGBTQIA+ persons, thereby intruding into a deeply personal realm of their lives. Instead of protecting the public interest and the rights of others, criminalisation does the exact opposite”

The Court of Appeal is expected to hand down its judgment mid to late November 2021. 



Additional Resources 

A summary of the appeal hearing by SALC and OSISA

WATCH: Attorney General Vs Letsweletse Motshidiemang

Click here

View all resources in one place

CAL has created a page where you can view more information regarding #DecrimBotswana, including:

  • Live tweets from LEGABIBO and SALC during the appeal hearing 
  • An information sheet, produced by SALC, re the hearing
  • The law needs to change, we want to be free: The impact of laws criminalising same-sex relationships in Botswana – Rights Booklet

Find the resource page here

The African Feminist Standpoint 

We are fast approaching the launch of Issue 5 of the African Feminist Standpoint. In this issue we have invited contributors to explore with us the cost of autonomy.

Some themes to expect in the next issue:

The politics of money: Funding for feminist/queer/womens groups 
Economic Justice: smashing the capitalist table or pulling up a seat 
Reproductive labour and care work
Imagining Feminist economic alternatives
Technology as space for activism vs Technocapitalism

Catch up with past issues of the AFS by following this link