Botswana LGBTI community fights for freedom in court

A landmark legal case challenging the ban on homosexuality in Botswana was heard in the High Court on Thursday.

A gay man, only identified as LM, is calling for the court to declare sections of the Penal Code that outlaw consensual same-sex sexual conduct between adults unconstitutional.

The court room was packed as a full bench of the court heard arguments from lawyers for LM and the Attorney General for and against repealing the criminalisation of homosexuality.

In an opening statement read out in court, LM said that the laws “limit me to interact with others who identify in the same way for fear of imprisonment.” He went on to explain that, “We are not looking for people to agree with homosexuality but to be tolerant.”

Under sections 164 and 167 of the penal code, those found guilty of having “carnal knowledge of any person against the order of nature” and engaging in “indecent practices between persons” face up to seven years’ imprisonment.

The organisation Lesbians, Gays and Bisexuals of Botswana (Legabibo), which was admitted as a friend of the court, tweeted updates of the proceedings throughout the day.

The Attorney General made various arguments against repealing the laws, including suggesting that homosexuality was a Western fueled practice and that the case was not about homosexuals but about protecting the morals of society. The credibility of Legabibo was also questioned because it received international funding.

The legal team representing LM and Legabibo set out to show that the anti-LGBTI provisions of the Penal Code unconstitutionally discriminate against LGBTI people in their daily lives, including exposing them to high levels of violence and restricting their access to HIV services. They further said that the state has no business interfering in the private lives of its citizens.

There were also arguments about whether the provisions actually target LGBTI people and if the courts should strike down these laws instead of leaving this to parliament.

After the conclusion of the hearing, the Southern Africa Litigation Centre (SALC), which has supported Legabibo in the case, said that judgment in the matter will be delivered on 11 June.

“We are really happy with the proceedings in court, all lawyers managed to argue their cases,”Legabibo told MambaOnline. “Legabibo managed to demonstrate the impact that criminalisation has on the daily lives of LGBTI persons in Botswana.”

It said it feels “pretty optimistic” about the pending ruling; “More so looking at the recent court trends towards LGBTI issues.” Legabibo added: “Botswana has been built on principles of botho, love and acceptance and we encourage Batswana to remember this when dealing with LGBTI persons.”

The courts in Botswana have increasingly affirmed the rights of LGBTI people in a number of previous matters. In 2016, Legabibo won a historic case in the Court of Appeal that saw the government being ordered to officially acknowledge and register the organisation. In two separate landmark cases, in September and December 2017, the courts also ordered the government to fully recognise the gender identity of transgender individuals.

In December last year, the President of Botswana, Mokgweetsi Masisi, was applauded for publicly speaking out in support of LGBTI people. “Just like other citizens, they deserve to have their rights protected,” he stated.