The Botswana gay community will today hear the life-defining decision in regards to the liberty to enjoy same-sex conduct without criminal repercussions as the Court of Appeal (CoA) is set to deliver the much-awaited judgment.
The full bench of Chief Justice Terrence Rannowane, CoA Judge President Ian Kirby and Justices Mercy Garekwe, Isaac Lesetedi and Monametsi Gaongalelwe recently heard the matter in detail as the gay community cried about the constant abuse they suffer as a result of their sexuality while the government, on one hand, is crying about the erosion of societal morality.
The community often referred to as the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) have been fighting for a long while to have the right to enjoy their choice of sexuality accorded to the majority without any discrimination. As a minority group, the gay community has decried the constant ill-treatment they suffer at the hands of the majority when accessing health services or just going about their lives. With the High Court had given them hope in 2019 when some sections of the constitution that criminalised same-sex conduct were repealed, now their eyes are set on the hills of the highest court to make that life-changing decision final. In essence, it could be life-changing for the gay community as many believe that their fundamental rights have been violated for long and that they are not able to access the necessary services when the need arises, especially health care services.
According to the complainant in the matter, Letsweletse Motshidiemang who has been leading the long fight for the decriminalisation of same-sex conduct and homosexuality, he has the right to privacy and his right to be protected just like any other citizen. Motshidiemang, who at the time was a University of Botswana student, first filed papers at the High Court in 2017 challenging the constitutionality of Section 164(a) and 167 of the Penal Code, which criminalised homosexuality. He challenged the sections saying they interfered with his fundamental right to liberty, as well as his right to use his body as he sees fit, which includes expressing his sexual affection through the only means available to him as a homosexual. Motshidiemang argued in detail that he has a right to equal protection of the law and the right not to be subjected to inhuman or degrading treatment. Motshidiemang, who is supported by the gay rights lobby group LEGABIBO and also the Southern Africa Litigation Centre, said the law interferes with his fundamental right not to be discriminated against irrespective of his sexual orientation.
He had wanted the court to declare that the said sections interfered with his fundamental right not to be subjected to inhuman and degrading treatment or other such treatment.
“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 stated Meanwhile, the gay community as evidenced in their court papers believes that the arguments that Batswana do not accept homosexuality did not hold any water evidenced by how open the society has been. The state on one hand still believes the country is premised on its Christian and traditional values that they do not recognise homosexuality and its conduct.