BONELA welcomes the Attorney General’s intention to appeal the decision of the Honourable Justices of the High Court that decriminalised same sex acts. BONELA posits that the appeal is long overdue. Furthermore, it is imperative that for the avoidance of doubt, a landmark ruling of this nature, be affirmed by the highest court in the country.
This appeal follows a historical judgement on 11 June 2019; where a unanimous decision by a three- bench judge of the Botswana High Court declared sections 164 (a), (c) and 165 of the Botswana Penal Code criminalizing consensual same sex acts as unconstitutional, as it violates the right to liberty, privacy, dignity, and non-discrimination.
BONELA reiterates that lesbians, gays, bisexuals, trans, intersex and queer (LGBTIQ) individuals have a constitutional right to assembly, association as well as freedom from discrimination. Denial of these rights is a gross breach of their fundamental human rights as enshrined in the Constitution of Botswana.
According to the 2017 Assessment of Legal and Regulatory Framework for HIV, AIDS, and Tuberculosis (LEA); LGBTIQ persons face significant societal stigma and discrimination, marginalisation, breach in confidentiality, poor quality and/or degrading treatment by providers, and human rights abuses due to the criminalization of consensual same sex conduct, which increases their risk of HIV exposure and imposes barriers in terms of access to treatment. A restrictive legislative environment leads to targeting, blackmail, violence, unemployment, and poor educational outcomes which further exacerbates vulnerability to HIV and deters health seeking behaviors.
Stigma and discrimination, persistent homophobia and transphobia, criminalization and marginalisation of key and vulnerable minority groups in Botswana, harms their human dignity, sexual and reproductive health and well-being.