11.06.2019-Botswana High Court decriminalizes consensual same sex sexual conduct

The High Court of Botswana today made history with its decision in the Letsweletse Motshidiemang v The Attorney General and Another case. The unanimous decision by the three judge bench consisting of Judge Tafa, Leburu and Dube effectively struck down S164 (a) and (c) and S165 which criminalized consensual same sex sexual conduct and have removed “private” from acts of gross indecency criminalized under S167.

 

In its decision, the Court held that these sections of the law invaded people’s private space and amounted to an “overregulation of human conduct”. Although the Court held that the sections were clear and so should not be voided for vagueness as argued by the plaintiff; the court did invoke powers conferred to it by the Constitution to change the law.

 

BONELA therefore firstly applauds the applicant for his selfless actions that brought to light and put a face to the effects of S164, 165 and 167 on the LGBTI community. BONELA also applauds the Court for adopting a progressive stance; one that recognizes that the law should be allowed to grow and so work for Batswana of the 21st century. In its ruling, the Court recognized that the Penal Code sections in question infringed on the right to privacy, liberty, dignity, did not afford LGBTI people equal protection of the law and were in effect discriminatory in nature. Infringements that have no place in a tolerant and inclusive society.

 

The law is now reformed to reflect the changing realities of Batswana; BONELA thus calls on duty bearers to adopt practice that reflects this. Going forward, we need to make a deliberate effort to adopt a rights based approach to service delivery, providing services to all – indiscriminately- and providing targeted prevention commodities so as to prevent new HIV infections.

 

For more information; please contact BONELA at +267 393 2516 and like our Facebook Page BONELA or Cindy Kelemi on This email address is being protected from spambots. You need JavaScript enabled to view it., +267 72385054/ Tebogo Gareitsanye on This email address is being protected from spambots. You need JavaScript enabled to view it., +267 73297509.

11TH JUNE 2019-JUDGEMENT ON SECTION 164 CASE TO BE DELIVERED TOMORROW

 

  1. Tomorrow, 11th June 2019, the Gaborone High Court will deliver its judgment on the landmark case; Letsweletse Motshidiemang v The Attorney General and Another with LEGABIBO as amicus curiae. This is a case where a gay man is challenging the constitutionality of Section 164 (a) and (c) and Section 167 of the Botswana Penal Code.
  1. The task of the court tomorrow will be to answer the legal question posed before it being; whether S164 (a) and (c) – which prohibits sexual intercourse per anum- is indeed unconstitutional and should be struck down.
  1. The fact that the case was heard in our courts speaks volumes about the openness and progressive nature of the Botswana legal system. This case has also created a platform for discourse on Botswana’s “anti-sodomy laws” and how they affect therights of the marginalized members of society. Batswana have also been given an opportunity to take stock of their views and assess the impact of such views on the protection, promotion and fulfilment of the rights of the minority.
  1. Over the years, BONELA has seen first-hand how laws such as S164 (a) and (c) and S167 have led to widespread stigma and discrimination, making LGBTI persons vulnerable to targeting, violence and blackmailing. These laws have also acted as impediments to accessing essential medical services as they have driven LGBTI persons underground and away from health services. The removal of these sections from the Penal Code will therefore ensure they are protected and fully enjoy their rights.
  1. BONELA is hopeful that tomorrow’s judgement will be one that reflects a modern and progressive society that seeks to see the rights of people, regardless of their race, sex, sexual orientation, gender, colour or creed protected. A Botswana which fully embodies the principles of botho indiscriminately.

 

For more information; please contact BONELA at +267 393 2516 and like our Facebook Page BONELA or Cindy Kelemi on This email address is being protected from spambots. You need JavaScript enabled to view it., +267 73586886/ Tebogo Gareitsanye on This email address is being protected from spambots. You need JavaScript enabled to view it., +267 73297509.

17.05.2019-BONELA On IDAHOT The President Of Botswana Dr EM Masisi Must Keep His Word

Today, 17th May 2019- The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) joins the world to commemorate the International Day Against Homophobia, Transphobia and Biphobia under the theme “Justice and Protection for All”. This year’s theme is particularly relevant given the negative experiences faced by LGBTQ+ persons across the world. According to UNAIDS over 65 countries around the world criminalise same sex sexual conduct, with 8 imposing death penalty.

The Caster Semenya case is a clear example of how the policies and laws across the world fuel stigma and discrimination, and can be used as a tool for social and economic exclusion, thus violating fundamental human rights.

In 2017, Botswana conducted a legal environmental assessment which confirmed that homosexuality itself is not illegal in Botswana. However, consensual sexual conduct between adults of the same sex is a criminal offense. Sections 164, 165 and 167 of the Penal Code prohibit “unnatural offenses” and “indecent practices.” Section 164 makes “carnal knowledge against the order of nature” a criminal offence and punishable with up to a seven year prison term.

The Botswana Court of Appeal has defined “carnal knowledge against the order of nature” as anal sex and both parties committing such acts can be held criminally liable. Section 165 criminalises attempts to commit the same offences and are punishable with up to five years of prison. Section 167 criminalises “indecent practices between persons,” defined as “acts of gross indecency” or procuring or attempting to procure another person to engage in “acts of gross indecency” whether in public or private.[1]

The Legal environment assessment also revealed that gay, bisexual and other men who have sex with other men, transgender persons, are socially marginalised, often criminalised and face a range of human rights abuses that increase their vulnerability to HIV.

Given this context, this year’s IDAHOT theme calls on all people, individually and collectively to make concerted effort to protect, promote and fulfil the rights of LGBTQ+ persons. A call that was expressed by the President of the Republic of Botswana, Dr Eric Mogweetsi Masisi. BONELA remains hopeful that the President’s call will translate into progressive policies that endeavour to promote, protect and fulfil the rights of the LGBTQ+ community under his leadership.

The theme also calls on all Batswana to ensure safety and security of the LGBTQ+ persons in and around their communities. This also requires increased efforts to ensure access to justice including legal representation and places of safety in cases of violations.

The Botswana Network on Ethics, Law and HIV/AIDS; is a human rights organisation whose vision is to make the right to health a reality in Botswana. In pursuit of this vision, BONELA advocates for inclusive laws and policies that guarantee full access to health services by lesbians, gays, bisexual, transgender and intersex persons; by addressing HIV, stigma, discrimination and gender based violence.

 

For more information contact BONELA on:

+267 393 2516 or  follow  BONELA on Twitter on @bonelaethics and like our Facebook Page BONELA

 

[1] Government of Botswana (1998) Penal Code, Section 167.

BONELA’S RESPONSE ON THE COMMUNITY MEDICATION REFILLL PROJECT AT THE NKOYAPHIRI CLINIC ANTIRETROVIRAL(ARV) DISPENSARY IN MOGODISTHANE

“In a bid to reduce congestion at Nkoyaphiri clinic Antiretroviral (ARV) dispensary in Mogoditshane, its management has embarked on a project to deliver ARV medication refills at doorsteps of stable patients who are faithfully taking their medication” (BOPA, 2019/05/20)

BONELA acknowledges the public health advantage of incorporating this above mentioned approach to reduce the HIV/AIDS epidemic in Botswana, we however submit that adopting a human rights approach to HIV/AIDS is in the best interest of public health and is key to achieving significant progress in reducing new HIV infections and subsequent eradication of the epidemic.

In view of the above, there are a plethora of human rights violations this strategy would cause, one of them is stigma and discrimination. Another is the fact that it contributes to forced disclosure which violates people’s right to privacy, and dignity. The strategy also puts clients at risk of gender based violence. These are constitutionally guaranteed rights of Batswana; it is therefore a concern as to why the government would want to violate them.

Notwithstanding the above, stigma awareness is still relatively poor in Botswana. In 2018 alone, BONELA received 10 cases through its free legal services that were related to disclosure, stigmatisation and discrimination from family members, the community and within work places. This is a demonstration that stigma related violations in relation to HIV is still high. BONELA therefore recommends that, for this model or approach to work, the Government of Botswana through the Ministry of Health and Wellness should intensify stigma and discrimination programs within the workplace and the public, through door to door campaigns to minimize the of the effects of stigma on PLWHA. The absence of such health educational programs is bound to increase public’s fear and resistance to HIV/AIDS response.

Michel Sidibé, (Executive Director of UNAIDS) in 2012 noted that “Whenever AIDS has won, stigma, shame, distrust, discrimination and apathy was on its side”. He further reiterates that “every time AIDS has been defeated, it has been because of trust, openness, dialogue between individuals and communities, family support, human solidarity, and the human perseverance to find new paths and solutions”.

It is against this background that BONELA argues that in this case, there ought to have been engagement with communities on more efficient ways to reduce congestion and improve accessibility to health services rather than the top down approach in the process creating a negative domino effect. In addition to the this, BONELA advocates for a multi month dispensing initiative, instead of taking pre-packaged ARV medications to patients’ home or work place. Approaches in the region in countries such as South Africa and Zimbabwe with decreasing HIV prevalence in the last 3 – 5 years have been to embark on treatment supply from periods ranging from 3 – 6 months at a time. Such models have proven to be effective in addressing challenges related to accessing ARVs on a monthly basis and further easing the pressure and the congestion at dispensing clinics. Another community angle that should be explored is the community based dispensing anti-retroviral therapy (ART) delivery which has shown tremendous success in regions where it has been implemented.

As the country accelerates its efforts for an AIDS-free generation and towards epidemic control by 2021, we believe this can be achieved through a combination prevention program that inculcates a human rights based service delivery plan, and a robust community engagement on stigma related issues. This will result in a sounder public health approach which will address the current challenges in ARV treatment, care and support.

14 March 2019-A CASE CHALLENGING THE CONSTITUTIONALITY OF SECTIONS 164(a) -164(c) and 167 OF THE BOTSWANA PENAL CODE

On Thursday, 14 March 2019, a full bench of the Botswana High Court, sitting before the Honourable Judge A.B Tafa, the Honourable Judge M. Leburu and the Honourable Judge J. Dube, will hear a case challenging the constitutionality of sections 164(a), 164(c) and 167 of the Botswana Penal Code. These provisions criminalise same-sex sexual conduct between consenting adults in Botswana and imposes a maximum sentence of seven years imprisonment.

The organisation Lesbians, Gays and Bisexuals of Botswana (#LEGABIBO) is admitted as a friend of Court in the proceedings. #LEGABIBO seeks to advance submissions before the full bench of the High Court on the practical effect and social impact that sections 164(a), 164(c) and 167 of the Penal Code have on the daily lives and experiences of LGBT persons. Particularly, the submission illustrates how the criminalisation of same-sex sexual conduct limits LGBT persons’ ability to access basic social services, increases their chances to discrimination, and infringes on their basic human dignity.

“Botswana is a diverse society and the Constitution protects the freedoms and dignity of all persons in Botswana, regardless whether you are gay, lesbian, bisexual, transgender or intersex”, says Anna Mmolai-Chalmers, LEGABIBO’s CEO. “Importantly, this has been acknowledged by our very own President His Excellency Dr. Mokgweetsi Masisi during the commemoration of 16 days of activism against violence on women and children in December 2018. There, he emphasised that ‘there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected’…”

“Over the past three years, the Botswana courts have shown themselves to be champions of jurisprudence which acknowledges the rights of LGBT persons and their right to equal protection before the law”, says Tashwill Esterhuizen, LGBTI and Sex Workers Rights Programme Lawyer, at the Southern Africa Litigation Centre (#SALC). “Through their sound legal reasoning and constitutional jurisprudence, the Botswana courts have set an example for other courts in the region on the important role the courts can and should play in protecting and promoting human rights of all persons, including marginalised groups. We are confident and hopeful that the court will uphold human rights of the #LGBTI community.”

Previously in the so-called “#LEGABIBO Registration case”, the Court of Appeal of Botswana held that Botswana is a diverse nation and that all persons, including LGBT persons are entitled to protection of their constitutional rights and dignity.

#LEGABIBO is represented by Tshiamo Rantao and supported by #SALC.

ISSUED BY LEGABIBO AND SALC

For further info:

Anna Mmolai-Chalmers, CEO of LEGABIBO: Tel: +267 71 340 794, E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Caine Youngman, LEGABIBO Advocacy Manager: Tel: +267 71814906, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Tashwill Esterhuizen, SALC LGBT and Sex Worker Rights Programme Lawyer: E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

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