Botswana Decriminalizes Consensual Same-Sex Relations

High court judges in Botswana have overturned the country’s ban on gay sexual relationships, saying it is a matter of human dignity.

The judges ruled Botswana’s anti-gay penal code provisions, which make same-sex relations punishable by up to seven years in prison, are unlawful. The three judges unanimously said the ban was “discriminatory.”

“Human dignity is harmed when minority groups are marginalised,” Justice Michael Leburu said in delivering the judgment. “Sexual orientation is not a fashion statement. It is an important attribute of one’s personality.

Leburu continued, saying the government “cannot be a sheriff in people’s bedrooms.”

“A democratic nation is one that embraces tolerance, diversity, and open-mindedness,” Leburu said. “Societal inclusion is central to ending poverty and fostering shared prosperity.”

The law in question — section 164 of the Penal Code — was enforced in 1965 by Botswana’s then-British colonial government. Its legacy, like the legacy of many such laws throughout African nations, has led to Africa’s LGBTQ people being denied even the most basic protections and seeing high rates of discrimination and violence.

Botswana is classed as one of Africa’s most stable democracies (though it is not without its problems). So it was always a country where challenging anti-LGBTQ laws seemed like it had a chance of success.

Such a challenge came in the form of a student, known only to the press as a gay man by the initials of LM. His lawyers argued attitudes to same-sex relationships had evolved and that because Botswana’s employment laws technically outlaw sexual orientation discrimination, maintaining the automatic ban on same-sex relationships was out of step with Botswana’s other laws.

“[The laws] limit me to interact with others who identify in the same way for fear of imprisonment,” he said in a March hearing. “We are not looking for people to agree with homosexuality but to be tolerant.”

It’s worth noting that despite President Mokgweetsi Masisi’s support for basic protections for LGBTQ people, lawyers for Botswana’s government argued to retain the law — saying the general public did not want to see it repealed.

Botswana’s legalization of gay sexual relationships has a wider significance for sub-Saharan African nations.

Kenya’s high court recently refused to lift the country’s colonial ban that can lead to gay people being imprisoned but is more widely used to legitimize violence and discrimination. But in January, Angola did lift its ban. As such, Botswana’s ruling redresses the balance a little and adds to that forward momentum.

Obviously, what one country does with its laws does not necessarily set a legal precedent for another country. But it is true to say that once one closely linked nation decriminalizes same-sex relationships, the pattern tends to be that other surrounding nations follow.

Campaigners are now hopeful that they might appeal the Kenya decision — saying a win in Kenya, where much of the population holds anti-gay views, would be significant for starting down the road to protecting and affirming Kenya’s LGBTQ population. While Botswana’s victory cannot directly aid that effort, it adds much-needed energy.

Meanwhile, LGBTQ rights advocates in Botswana are looking at how they might further solidify this progress into things, such as partnership recognition and wider anti-discrimination protections.

Photo credit: Bennian/Getty Images

67 comments

silja salonen
silja s2 hours ago

good news ....

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Christine V
Christine V4 hours ago

Finally!

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Alea C
Alea C5 hours ago

Back again for butterfly points.

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Alea C
Alea C5 hours ago

Back again for butterfly points.

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Alea C
Alea Cyesterday

Better late than never.

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Alea C
Alea Cyesterday

tyfs

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Vincent T
William T7 days ago

thanks

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danii p
danii p8 days ago

Thank you

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danii p
danii p8 days ago

Thank you

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Frances G
Frances G8 days ago

Thank you for sharing

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