A new film showcases the experiences of young LGBTQ people in Botswana – illustrating the struggles, resilience and beauty of a community often unheard and often unseen.
Decriminalisation in Botswana
In June 2019, Botswana’s High Court ruled in favour of decriminalising homosexuality.
While there are examples of same-sex relationships being accepted by the people of Botswana throughout the centuries, Botswana was colonised by the British in 1885. Colonisation introduced the British legal system to Botswana – including Britain’s anti-sodomy laws of that time, making homosexuality illegal in Botswana.
The criminalisation of homosexuality formed part of the penal code of Botswana. While convictions were rare, the punishment was up to seven years imprisonment.
The fight for decriminalisation
A student at the University of Botswana was the lead plaintiff in the case to legalise homosexuality in Botswana.
LEGABIBO – Lesbians, Gays and Bisexuals of Botswana – is the country’s main LGBTQ advocacy group, and in 2017, LEGABIBO successfully applied to join the case as a friend of the court.
The lawsuit sought to declare Section 164(a) and 167 of Botswana’s Penal Code unconstitutional because “they interfere with his [the student’s] fundamental right to liberty, freedom of privacy, as well as his right to use his body as he sees fit.” However, the Deputy Attorney General, on behalf of the Government, argued that these sections are constitutional because they prohibit certain sexual acts, which may be conducted by those of all sexual orientations, whether heterosexual or homosexual, and that therefore these laws don’t discriminate based on sexual orientation.
Initially, the High Court of Botswana was supposed to hear the case in March 2018. However, in February 2018, the Deputy Attorney General asked for more time to respond to the plaintiffs’ claims. Allowing the Deputy Attorney General’s request, the High Court moved the hearing to 31 May 2018. The case was then postponed again and the hearing was re-scheduled for 14 March 2019.
The outcome, in favour of decriminalisation, was finally delivered in June 2019.
After three judges came to the decision unanimously, Judge Michael Elburu delivered the verdict on 11 June.
“Human dignity is harmed when minority groups are marginalised…” said the judge.
He labelled laws banning gay sex as “discriminatory” and said: “Sexual orientation is not a fashion statement. It is an important attribute of one’s personality.”
Botswana is generally seen as a socially conservative country, and there has been little visibility or acceptance of LGBTQ people. This does appear to be changing, with politicians beginning to make positive statements, and opinion polls showing that younger people in Botswana are more accepting of the LGBTQ community.
The court’s decision in 2019 appears to have extended constitutional protections against discrimination to sexuality, although this doesn’t seem to have been tested.
There is not currently any legal recognition of same-sex relationships.
LGBTQ people are prohibited from serving in the country’s military.