A 21-year-old University of Botswana (UB) student is leading the latest fight by lobbyists for the decriminalisation of homosexuality. Letsweletse Motshidiemang recently filed papers in the Lobatse High Court challenging the constitutionality of Section 164(a) and 167 of the Penal Code, which criminalise homosexuality.
In his application filed before Justice Leburu of Lobatse High Court, Motshidiemang says the sections in question interfere 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 says he has a right to equal protection of law and the right not to be subjected to inhuman or degrading treatment.
Yesterday, gay rights lobby group, the Lesbians, Gays and Bisexuals of Botswana (LEGABIGO) successfully applied to join the case as a friend of the court. In his papers, Motshidiemang argues that the law interferes with his fundamental right not to be discriminated against irrespective of his sexual orientation.
The student wants the court to declare that the said sections interfere 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 states. He says arguments that Batswana do not accept homosexuality do not hold any water as evidenced by remarks made by Members of Parliament Botlogile Tshireletso, Duma Boko and some chiefs to the effect that there should be no discrimination based on sexual orientation.
Motshidiemang added that a study conducted by Afrobarometer at the UB found that young Batswana were more tolerant of gays. However, opposing the lawsuit, deputy Attorney General Morulaganyi Chamme on behalf of government, argued that the said sections did not target any specific sex or sexual preference per se. Rather, he said, the sections prohibit against certain sexual acts, which may be conducted by all those of all sexual preferences whether heterosexual or homosexual.
The deputy Attorney General further argues that the acts as prohibited may also be the main preference of a heterosexual person or transgender person and there is nothing placed before the court to show that such acts are specific to homosexual males that would make them the purview of a homosexual. “Section 164 (a) and or (c) are not discriminatory as they are of equal application to all sexual preferences. It may be further extrapolated however that as this is the applicant’s main mode of sexual intercourse, that there are other modes of sexual intercourse available to the applicant,” he said.
Chamme further argues that being homosexual is not criminalised but rather certain sexual acts deemed to be against the order of nature, which may be committed by members of any sexual preferences. The matter is due for arguments next year in March.