Consensual same-sex activities are now legal in Botswana. This comes after a ruling by the outgoing Court of Appeal President Judge Ian Kirby. Judge Kirby has observed that the decriminalization of the activities is unconstitutional, and “serve only to stigmatize gay men unnecessarily.”
According to the Penal Code of Botswana, in sections One hundred and sixty-four (164), and One hundred and Sixty-five (165), same-sex activities are unlawful “Unnatural offences”. The two (2) sections reads;
- Unnatural offences
Any person who-
(a) has carnal knowledge of any person against the order of nature;
(b) has carnal knowledge of an animal; or
(c) permits any other person to have carnal knowledge of him or her against the order of nature,
is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.
- Attempt to commit unnatural offences
Any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment for a term not exceeding five years.
In his judgement, Judge Kirby has rendered the two (2) sections as unconstitutional, and has ordered that they be struck out of the Penal Code of Botswana
“Since the penal code (Ammendment) Act of 1998, there can be no discernible public interest purpose in the continued existence of sections 164(a) and 164(c) of the Penal Code. In my judgment they have been rendered unconstitutional by the march of time and the change of circumstances. At present, they serve only to stigmatise gay men unnecessarily, which has a harmful effect on them, and as far as I am aware there has never been any prosecution of a woman, or even any thought of doing so, for the offence of sodomy. Those sections have outlived their usefulness, and serve only to incentive law enforcement agents and others to become key-hole peepers and intruders into the private space of citizens. That, in my view, is neither in the public interest, nor in the nature of Batswana.
In my judgment, Leburu J was corrected to strike down the two sections on the ground that they breach the fundemental right to privacy.” ruled Judge Kirby.
The government had appealed a judgement by the High Court of Botswana which legalised the consensual same-sex activities. The matter was between Letsweletse Motshidiemang and LEGABIBO versus Attorney General.
The Government was represented by Advocate Sidney Pilane, while Gosego Rockfall Lekgowe represented Letsweletse Motshidiemang. Tshiamo Rantao represented LEGABIBO, who applied to be friends of the court in the matter.