On Tuesday a bench of three judges deliberated on the much-anticipated case calling for the decriminalisation of same sex sexual conduct. Justices Michael Leburu, Jennifer Dube and Abednigo Tafa agreed that the right to privacy, liberty and dignity were fundamental rights for all and should be respected and upheld. Staff Writer MPHO MOKWAPE has been following the case since it debuted in court
“In my view, the criminalisation of anal sexual intercourse between consenting adults in private, if indeed it has any discernible objective, other than enforcement of private moral opinions of the section of the community (which I do not regard as valid) are far outweighed by the harmful and prejudicial impact it has on gay men.
“Moreover depriving such persons of the right to choose for themselves how to conduct their intimate relationship poses a greater threat to the fabric of society as a whole than tolerance and understanding of non conformity could do.”
The Supreme Court of Zimbabwe made the statement when ruling on the case of former president, Canaan Banana case who had been convicted on charges of sodomy and indecent assault amongst others.
This week, the High Court cited the case in a historic judgement that allows same sex conduct in Botswana.
Botswana has for long opposed homosexuality mainly on account of morality and religion. The Constitution has provided the necessary weapons against gay minorities through Section 164 and 165 of the Penal Code, which criminalised acts of homosexuality even between consenting adults.
Sodomy laws, which govern non-consensual same sex acts involving men, made their way into the country in 1964 through the enactment of the present Penal Code, which has since undergone several amendments.
However with the evolution of human rights advocacy and changing attitudes towards morality and sexuality, the Lesbian, Gay, Bisexual and Transgender (LGBT) minority in Botswana was always going to have its day.
That day came this week when a case filed against the Penal Code’s anti-gay section by a 24-year student succeeded at the High Court.
Despite the case being of high interest to the public, from their judgement it is clear the High Court judges shrugged off societal pressure and deliberated thoroughly taking into account both parties’ arguments, the readiness of the society to accept change and the evolution of law.
The judges’ explanation on the interface between law and moral values was that the law was trite while moral values were standards of what was good and bad, tolerable, and choices as may be influenced by different sources and perspectives.
“Put together the law
The law has always been clear on discrimination based on sexual orientation, judges said. That was a key factor they considered even before diving into the merits of the case.
The judges noted note that the applicants in the matter came prepared especially the Lesbians, Gays, and Bisexuals Botswana (LEGABIBO), which appeared as amicus curie (friend of the court).
The NGO advanced solid reasons to decriminalise homosexuality and even provided expert evidence on the matter, which would later prove critical in the judgement.
The State, meanwhile, cited the need to protect public morality, but failed to produce any evidence that Batswana are against same sex acts or that public morals would be harmed by the decriminalisation of gay acts.
The judges said there was no justification that was given by the respondents as to why a person’s rights to privacy and autonomy ought to be curtailed relating to consensual acts done in private.
The famous Kanane versus the Attorney General Court of Appeal case of 2003 also weighed against the State, which ironically had heavily cited the 16-year old matter in the latest challenge.
Kanane was charged in March 1995 for committing unnatural offence with another adult male, challenging the matter all the way to the Court of Appeal but losing.
According to the judges, in the Kanane case the Court of Appeal in 2003 was of the view that Botswana and Batswana were not ready for the decriminalisation of homosexual practices between two or more consenting adults in private.
However, as the High Court pointed out, that left a window of opportunity to decriminalise it. The State, meanwhile, had expected the High Court to take its cue from the Court of Appeal judgement in 2003 and find in its favour.
Commenting on the matter, prominent human rights lawyer said the judges got it right.
“One key thing that the court did was to read sexual orientation into the Constitution as one of the grounds upon which discrimination is prohibited. So henceforth, discrimination based on sexual orientation is prohibited on other spheres of life as well,” he said.