Some key points of the 2019 judgement same sex case

Activists during court case
Activists during court case

As the case on same sex decrimilisation goes before the highest court , Mmegi duly unpacks the ultimate key points that were notable in the 2019 judgment. “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,” 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.

Despite the case being of high interest to the public, clearly the High Court judges had to do away with the societal pressure and deliberate accordingly taking into account both parties’ arguments, readiness of the society 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 therefore, ought to be a reflection on society’s moral values,” noted the judgment. Accordingly, the law has always been clear on discrimination based on sexual orientation. That was a key factor for the judges to consider even before delving into the merits of the case. “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, that is progressive.


So henceforth, discrimination based on sexual orientation is prohibited on other spheres of life as well,” said human rights lawyer Uyapo Ndadi. The judges had to note that the applicants in the matter were prepared especially the Lesbians, Gays, and Bisexuals Botswana (LEGABIBO), which appeared as amicus curie as they advanced reasons and even gave expert evidence on the matter.

The state’s failure to also justify their opposition on the matter was a key factor in the decision. The judges said there is 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 Kanane versus the State decision also acted as an anchor for the judges who accused the State of failing to sustain their arguments but rather pulled the case decision as a trumpcard. Kanane was charged in March 1995 for committing unnatural offence with another adult male. According to the judges, the Kanane case decision by the Court of Appeal in 2003 was of the view that the time for decriminalising homosexual practices between two or more consenting adults in private was not ripe. However, it pointed out that the highest court left out a window of opportunity whenever the imperative of events and circumstances were apposite and conducive, to decriminalise it. “The applicants’ case that there has been a material change of circumstances since the Kanane decision was rendered and therefore, sex between males and males should be decriminalised,” said the judges.

The case will be heard on Tuesday next week at the Court of Appeal.

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