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,” said the Supreme Court of Zimbabwe on the Canaan Banana's case who was convicted on charges of sodomy and indecent assault among others. Botswana on the other hand has for long been opposed to homosexuality mainly on account of morality and religion and the Constitution has always provided that leverage against the minority group through the provision of Section 164 and 165 of the Penal Code that criminalised acts of homosexuality between consenting adults.
The sodomy laws 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 the ever-changing laws in relation to human existence, the stroke of luck for the homosexual community was long overdue. The constitutionality of such provisions in the penal code came into the fore when a young man of 24 years filed a case challenging such laws, which he argued were discriminatory and unconstitutional.
