What the law says about sodomy and homosexuality
Mpho Mokwape | Friday March 18, 2016 14:42
It may be that engaging in homosexual activity is outlawed. But if I were to use an example of one born left-handed, if it was a crime to write with a left-hand, such a person would not be punished for being left-handed but for writing with a left hand just as a gay person would not be punished for being gay but rather for engaging in a same sex relationship.
In my opinion there is a world of difference between engaging in a prohibited conduct and lobbying for that conduct to be decriminalised.
This was High Court, Terrence Rannowame’s judgment as he endorsed the recognition of the LEGABIBO movement.
Now with the government constantly making reference to the 2003 Kaname versus State case, there has been a lot of confusion as to who would be liable for a criminal conduct but the Court of Appeal (CoA) had held that there was legally nothing that prevented “gay men and lesbians” from associating with each other subject to the law.
The Kanane case was the leading authority to date in the country on gay and lesbian rights, as two consenting males had been charged in 1994 with committing in private an ‘unnatural’ offence contrary to section 167 as read with section 33 of the Penal Code. The sections in question had been challenged as being unconstitutional in that they discriminated against men on account of their gender and interfered with their enjoyment of their fundamental rights. At that time the judgment had explained that at the time section 164 (c) made it a criminal offence for any person to permit a male person to have carnal knowledge of him or her against the order of nature, while section 167 criminalised ‘acts of gross indecency’ committed in public or in private by a male person with another male person.
The court held that ‘carnal knowledge against the order of nature’ meant sexual intercourse, regardless of the gender of the participants.
“On that basis it held that section 164 was non discriminatory on gender grounds and was thus constitutional,” read the judgment. The court had then concluded that gays and lesbian should be considered to be a group deserving of the protection against discrimination in terms of sections of the constitution, although sexual orientation was not mentioned in either sections where sex was not then included either, among listed categories protected from discrimination. Again the country too in its 2009 Universal Periodic Review to the Human Rights Council of the United Nations, the government through the then Minister for Defence, Justice and Security, acknowledged that while Botswana law crimilised same sex sexual activities, civil society organisations were free to advocate for change and Rannowane had held that it was not correct that the constitution does not recognise homosexuals. “Advocacy for the discrimination of same sex sexual relationships could not be equated with encouraging the commission of criminal offences contrary to sections 164 and 167 of the Penal Code,” he said.