Anti-same sex law made police 'key-hole peepers' – CoA
Mbongeni Mguni | Monday November 29, 2021 14:00
A five-judge bench of the Court of Appeal struck out two sections of the Penal Code in a historic judgement that decriminalises same sex relations. The judgement delivered by the country’s highest court essentially dismissed government’s appeal against the 2019 High Court ruling in which Letsweletse Motshidiemang successfully sued to decriminalise same sex relations.
Delivering the lengthy judgement on behalf of the bench, outgoing judge president, Ian Kirby said there was no discernible public interest in the continued existence of the sections of the Penal Code that criminalise same sex relations.
“These sections have outlived their usefulness and serve only to incentivise law enforcement agents and others to become key-hole peepers and intruders into the private space of citizens,” he said. “That, in my view, is neither in the public interest, no in the nature of Batswana.”
Kirby said he endorsed the words of Lord Wolfendon of England who noted in a report that: “There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”
The judgement this morning brings an end to a marathon case dating back to November 2017 when Motshidiemang first filed suit against government in the Lobatse High Court challenging the constitutionality of sections of the Penal Code which criminalised homosexuality.
In his founding papers, the then 21-year old university student argued that the sections in question interfered with his fundamental right to liberty, as well as the right to use his body as he saw fit, which included expressing his sexual affection through the only means available to him as a homosexual.
“The law violates my fundamental right and freedom to privacy in that it interferes with an intimate and personal aspect of my life that causes no disrespect to the rights and freedoms of others and also causes no harm to the public,” he said.
Local lobby group, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) joined Motshidiemang as “amicus curae” or friend of the court. A “friend of the court” is a non-party with an interest in the outcome of a pending lawsuit who argues or presents information in support of or against one of the parties to the lawsuit.
The Court of Appeal awarded costs against government, although these will only be for Motshidiemang as LEGABIBO did not seek costs as a friend of the court.