Govt appeals same sex decriminalisation judgement
Abraham Keetshabe | Friday July 5, 2019 18:27
I have found it necessary in view of recent developments, concerning the above matter to release a statement on the position of the Attorney General regarding the decision of the High Court pertaining to the Constitutional challenge that Sections 164 (a), Section 164 (c) and Section 165 of the Penal Code (Cap 08:01, Laws of Botswana) are declared ultra vires (beyond the powers) the Constitution, in that they violate Section 3 (liberty, privacy and dignity); Section 9 (privacy) and Section 15 (discrimination).
The brief facts of the matter, which are common cause, are that the applicant Letsweletse Motshidiemang, a “gay” person instituted an application in the High Court challenging the constitutionality of these Sections. Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) appeared as a friend of the court.
These provisions criminalize same-sex sexual conduct between consenting adults and prescribe a maximum sentence of seven years imprisonment. The matter was heard before a panel of three Judges of the High Court, namely Mr Justice Abednego Tafa, Mr Justice Michael Leburu and Ms Justice Jennifer Dube who unanimously ruled on 11th June 2019 in favour of decriminalizing homosexuality. The court rejected the laws against same – sex relationships stating they were unconstitutional as they violate privacy, liberty, and dignity; are discriminatory; and serve no public interest.
I have thoroughly read the 132 page - long judgment and I am of the view that the High Court erred in arriving at this conclusion and thus, I have decided to note an appeal with the Court of Appeal.
Adv. Abraham M. Keetshabe
ATTORNEY GENERAL
5th July 2019