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.