In the kind of progressive and highly analytical, intellectually stimulating judicial decision-making we have come to expect of the Court of Appeal led by outgoing Judge President Kirby, a five bench court comprising Kirby himself (a judge whose praises I could sing all day, if we had the time, because of the transformative judgments he has led, and the human rights approach he employs, through a lense so attentive and finely tuned to the realities of Botswana), rendering his final and best decision yet, leading the pack of judicial activists, Garekwe J (a fiercely astute member of the bench), Lesetedi J (a master of legal technicality), Gaongalelwe J (a wise man) an our previously timid and now bold and unforgiving in his pursuit of a protective contextual approach to human rights issues, Chief Justice Rannowane; who made a landmark decision, undoing the legacy of the Court of Appeal decision in the Kanane case.
The judges, as the world watch, delivered their decision, decriminalizing same sex intimacy and illustrating the kind of Decoloniality of power which should be expected from an institution such as the judiciary. The compelling decision took so many factors into consideration, including the politics of sexuality, the needs of sexually marginalized communities, as well as the power in recognition.
This decision decriminalizes the archaic law which is one of those we inherited through colonialism, and specifically the import from the 1933 Indian Penal Code, and we had failed to repeal it for decades, until the present day. Before various human rights mechanisms, who tried to hold us accountable for the continued harm caused by the presence of the laws, and the socially perceived criminalization of diverse sexuality they had, previous presidents tried to justify the impugned provisions, saying they had not, in recent times, been used to convict anybody, and that they were therefore harmless.
Of course this was not true. These laws remained harmful, and were the premises of stigma and discrimination against persons of diverse sexualities as well as gender identity and expression in the country. The inequality which results from the law, rendered non-heteronormative persons to a status subordination, reducing the rights they could, as a community enjoy. As much as we would like to believe that we are a human rights haven, this was one of the laws which showed that there was great systemic, systematic and institutionalized discrimination, both direct and indirect. The impact of the law which criminalized what the High Court defined as “anal sex” was more limiting to homosexual persons than any other community in the country. So effectively, the repeal of this law, and the confirmation of its repeal, as buttressed by the Court of Appeal was much needed. Now the law strongly commands us to stay out of the private lives of people, and out of their bedrooms.
Following this decision by the Court of Appeal, the Attorney General issued a press statement, confirming that he will hasten to implement the order. Although the press release is welcome, and we accept it as the apology for the historical harm this law caused, and the deep societal trauma which many families now have to start healing from, the arguments advanced by the Attorney General’s advocate, Sidney Pilane, against the repeal of sections in the Penal Code which criminalized consensual same-sex intimacy are atrocious and have to be addressed. These arguments are of course not alarming, and they are similar to those advanced by the Evangelical Fellowship of Botswana in 2013 in the Thuto Rammoge and 19 others v Attorney General and Another case, which was the case for the registration of the organisation LEGABIBO.
The intervention by the religious establishment, although later withdrawn, were to the effect that Botswana was a Christian nation and could not embrace the unAfrican values of sexuality. Of course the suggestion here is that Christianity and other religions in the country and the God served by these religions, are so exclusive that there are people who should be treated as unequal, to prove the position of the deity, or to ensure that those who are “living right” are rewarded with the status of being protected for being more human, and more protectable and more worthy of all human rights and the recognition, protection and promotion of these human rights. this is completely at a juxtaposition with the bible which says that not only have all of us sinned and fallen short of God’s glory, but also, that we are all (equally) loved by God.
I will not advance biblical arguments about the protection of margnalised communities, for the simple reason that the bible is not only translated, it is a book we inherited from our colonial masters, which we continue to use to oppress each other. It is an inspired text which was written by humans, but we selectively adhere to it, in the same ways the government paid Pilane to suggest that it is ok for the law to invade peoples’ privacy and their homes. I will not be addressing the bible, no. What I do think we should interrogate, and interrogate very deeply is the role of the church in advancing deeply problematic propaganda about homosexuality, despite the fact that Botswana is in fact a secular nation.
In the next piece, we will look at the ways the church and other religious outlets, use their power to influence problematic principles and standards of human rights in our country, in similar ways to other African countries.