"There is no law that makes homosexuality a crime, although it would be fair to say that the average person thinks that this is contained in the law. There is no indication that the Penal Code will be amended to include homosexuality as a specific offense", Nolan claimed in a cable leaked by WikiLeaks.
He revealed that there is nothing in the Penal Code that specifically criminalises homosexuality. Nolan wrote that the perception may stem from provisions of the Penal Code that penalise "unnatural acts," and the widespread belief that this is targeted at homosexuals.
Ambassador Nolan stated that in particular, the Penal Code of Botswana, Chapter 8:01, Section 164 states: 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 a male 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.
"This section was amended in 1998 to substitute "any other" for the word "male". This is the only section in the Penal Code that appears to be pertinent", he wrote.
The ambassador also noted that currently a pressure group which is trying to register as a non-governmental organisation (NGO) to advocate for the rights of gay, lesbian and bisexual people in Botswana, is however, being denied recognition because it will "advocate for something that is illegal."
Nolan stated that gays and lesbians seem fine and free in Botswana as members of the group, LIGABIBO are publicly known and openly gay and there have been no reports of any retribution, harassment by the police, or violence by the government agents or private citizens.
"Current and former members of the Botswana Police Service say that they do not actively seek homosexuals to arrest, and that this would only be pursued if they received specific complaints.
"In fact, there are only isolated reports of any one being arrested or brought to trial under this statute in years past", Nolan stated.
In general, although gays in Botswana do not disclose their sexual orientation publicly, Nolan writes that it is not out of fear of the public or the law but simply because Botswana is a conservative society where it is very rare to see public displays of affection, even between heterosexual couples.
"Therefore, it is hard to say if gays are suppressed from expressing their feelings or if lack of homosexual expression fits within the cultural context of keeping displays of affection and sexuality a private matter".
In general, Nolan stated that it seems as though one could classify Botswana as a "don't ask, don't tell" society when it comes to homosexuality.
"The citizens of Botswana know it exists and seem to turn a blind eye as long as the issue is not forced upon them", he stated in his cable.