Anti-same sex law made police 'key-hole peepers' – CoA

Rainbow victory PIC. THALEFANG CHARLES
Rainbow victory PIC. THALEFANG CHARLES

The sections of the Penal Code which criminalise consensual same sex relations, encourage police to become “key-hole peepers and intruders into the private space of citizens,” the Court of Appeal said this morning.

A five-judge bench of the Court of Appeal struck out two sections of the Penal Code in a historic judgement that decriminalises same sex relations. The judgement delivered by the country’s highest court essentially dismissed government’s appeal against the 2019 High Court ruling in which Letsweletse Motshidiemang successfully sued to decriminalise same sex relations.

Delivering the lengthy judgement on behalf of the bench, outgoing judge president, Ian Kirby said there was no discernible public interest in the continued existence of the sections of the Penal Code that criminalise same sex relations.

“These sections have outlived their usefulness and serve only to incentivise law enforcement agents and others to become key-hole peepers and intruders into the private space of citizens,” he said. “That, in my view, is neither in the public interest, no in the nature of Batswana.”


Kirby said he endorsed the words of Lord Wolfendon of England who noted in a report that: “There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”

The judgement this morning brings an end to a marathon case dating back to November 2017 when Motshidiemang first filed suit against government in the Lobatse High Court challenging the constitutionality of sections of the Penal Code which criminalised homosexuality.

In his founding papers, the then 21-year old university student argued that the sections in question interfered with his fundamental right to liberty, as well as the right to use his body as he saw fit, which included expressing his sexual affection through the only means available to him as a homosexual.

“The law violates my fundamental right and freedom to privacy in that it interferes with an intimate and personal aspect of my life that causes no disrespect to the rights and freedoms of others and also causes no harm to the public,” he said.

Local lobby group, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) joined Motshidiemang as “amicus curae” or friend of the court. A “friend of the court” is a non-party with an interest in the outcome of a pending lawsuit who argues or presents information in support of or against one of the parties to the lawsuit.

The Court of Appeal awarded costs against government, although these will only be for Motshidiemang as LEGABIBO did not seek costs as a friend of the court.

Editor's Comment
More resources needed to fight crime

The Fight Crime Gaborone Facebook page is always filled with sad complaints of hard working Batswana who were robbed at knife point at some traffic lights or at their home gates when trying to get inside.These thugs have no mercy; they do not just threaten victims, they are always ready to use knives, and sadly, they damage car windows. While this happens at different traffic lights, there are those where such incidents happen more frequently...

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