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.

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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