The Decriminalisation of Same-Sex Intimacy: An Introduction to the role of Religious Institutions in advancing Stigma and Discrimination :: Mmegi Online

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.

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