Botswana’s High Court strikes down sodomy laws

On June 11, 2019, the High Court in Botswana ruled that the country’s laws criminalizing same-sex relations were unconstitutional .

Out Leadership partner Human Rights Watch issued a press release excerpted below:

The court in Letsweletse Motshidiemang v. State found in a unanimous decision that Botswana’s “sodomy laws” violate privacy, liberty, and dignity; are discriminatory; and serve no public interest. LGBT activists throughout Africa met the ruling with an outpouring of joy. The ruling is subject to appeal by the government to Botswana’s Court of Appeal, although President Mokgweetsi Masisi has affirmed that all people in Botswana, including people in same-sex relationships, deserve to have their rights protected.

“The High Court recognized that Botswana’s law and policies need to protect the rights of all, regardless of sexual orientation,” said Neela Ghoshal, senior LGBT rights researcher at Human Rights Watch. “The court ruling is a victory both for LGBT people in Botswana and for LGBT people and their advocates throughout Africa.”

In Motshidiemang, the High Court said that constitutional principles related to dignity and equality were in the balance. While the lawyer for the state had argued that “the law should reflect on the values of society,” petitionerscountered that such laws limit access to social services, infringe upon human dignity, and constitute an unjustified violation of non-discrimination principles.

Activists in the courtroom live-tweeting the ruling said the judges found that culture cannot justify violation of universal rights. The court stated that sodomy laws belong “in the museum or the archives,” and should not govern present-day life.

Prior to independence in 1966, Botswana was part of Bechuanaland, a British protectorate. The country’s anti-homosexuality laws are a legacy of British imperialism. Article 164 of the penal code punishes “carnal knowledge against the order of nature” with up to seven years in prison, while article 167 punishes “indecent practices between persons” with an unspecified sentence. In an odd twist, when revising its laws to uphold gender equality in 1998, Botswana “equalized” its “indecent practices” law to criminalize same-sex conduct between women as well as men.