Botswana’s High Court in southern Africa has become the second country within a week to decriminalize homosexuality.
The High Court in Gaborone – Botswana’s capital city – handed down its unanimous ruling on Tuesday morning (11 June).
The court ruled that Sections 164 and 167 of Botswana’s Penal Code which outlawed ‘carnal knowledge of any person against the order of nature’ was unconstitutional.
Those convicted under Section 164 faced a jail sentence of up to seven years.
The High Court heard the case after a gay man known only as LM, filed a petition to repeal Section 164. Botswana’s leading LGBTI advocacy group, LEGABIBO, was admitted a friend of the court during proceedings.
LGBTI and humans rights advocates packed the courtroom to hear the judgement handed down by the Honourable Judges Tafa, Leburu and Dube.
The judges agreed unanimously that a person’s right to privacy included the right to choose a life partner and ‘fundamental private choices including those with regards to sexual conduct’.
‘Sexual orientation is not a fashion statement. It’s an important attribute of one’s personality. All people are entitled to autonomy over their sexual expression,’ said Leburu in the ruling.
The full bench ruled Sections 164 and 165 of the Penal Code were discriminatory.
‘Public opinion in cases like this is relevant but not decisive. This is about fundamental rights more than the public’s view,’ Leburu said.
Leburu also said: it is ‘not in the public interest’ to criminalize same sex sexual conduct.
‘What compelling public interest is there necessitating such a law? There is no victim,’ the judge said.
The decriminalization of homosexuality followed a number of positive court rulings for the LGBTI community in recent years.
LEGABIBO won a massive fight in the High Court in 2016. The court ruled it was illegal for the government to refuse to register LGBTI rights organizations.
Later that year Botswana kicked out anti-gay pastor Steven Anderson who wanted to open a church there.
In December 2017 trans woman, Tshepo Ricki Kgositau, won the right to have her true gender officially recognized in Botswana.
Only a few months before Kgositau’s case, a trans man won a 10-year legal battle to have his gender recognized as male on official documents.
The High Court’s ruling made Botswana the second country in less than a week to decriminalize homosexuality.