On March 14, 2019, in a Court hearing that lasted well beyond 5pm, the High Court of Botswana, with a full bench of three Judges, heard an application made by an Applicant who sought to have Penal Code provisions that criminalise same sex intimacy, amended or comletely retracted from the statute.
In recent years, the Courts of Botswana, at High Court and Court of Appeal levels, have been unusually ceased with matters that interrogate the extent of the law on matters of sexual orientation, gender identity and expression. Unusual because until recently and beyond the Kanane case which will be delved into eventually, there was little to no judicial engagement on the protection of these marginalised members of our society. These cases have not only been ground breaking for Botswana, but have set the tone for the rest of the region and are forming precedents for other countries to refer to in similar cases.
As part of Botswana’s colonial legacy, there are still certain laws and practices that highlight a need for Constitutional reflection and Judicial or Executive decisions on the continued relevance of the existence of these laws. The Applicant in the case argued on the 14th March, contested the Constitutionality of section 164 (a) and (c) as well as section 167 of the Penal Code of Botswana of 1964.
Section 164, titled “Unnatural Offences”, provides that, “Any person who (a) has carnal knowledge of any person against the order of nature; or…(c) permits any other person to have carnal knowledge of him or her against the order of nature, is guilty of an offence.” Section 167, titled “Indecent Practices Between Persons” states that, “Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or private, is guilty of an offence”
The two provisions, and more particularly Section 164, owe their presence in our laws, to similarly worded provisions in an Indian Penal Code from the 1850s. Carnal knowledge “against the order of nature”, is essentially any sexual relations that are unintended for procreation. And yes! This includes relations between persons of opposite sexes. Despite the broadness in the meaning of the phrase, the way in which it has been used, has been against one portion of the population, being LGB persons.
The arguments made by the Applicant, through his attorney, Gosego Lekgowe, are that not only are the prohibitory laws unconstitutional and well beyond their time, but also that there are positive actions evidencing a move, of the general population of Botswana, away from attitudes that are “hardened”, against persons who are attracted to persons of the same sex. Evidence was produced to the Court, which showed not only that this is noticeable in policy documents including Visions 2016 and 2036, which envision Botswana as a peaceful, compassionate and tolerant nation. In addition to this, and particularly emphasised by the Amicus Curae in the matter, LEGABIBO, through it’s attorney, Tshiamo Rantao, health programming which includes gay men and other men who have sex with men (MSM), as well as statutory amendment to the Employment Act of 2010, and statements made by Members of Parliament. More importantly, expert evidence was adduced which showed that the existence of the law effectively caused stigma and discrimination against LGBT persons. It was further shown that the existence of laws and the stigma and discrimination that derives from them, negatively affected the community making people more prone to depression, anxiety and alcohol abuse. The argument was that the existence of the laws evidences Botswana’s societal failures, in being a compassionate and tolerant people.
Government, through Advocate Sidney Pilane, sheltered its argument in the Court of Appeal decision of Kanane against the state, that is 15years old. In that case, the Court of Appeal effectively said that Batswana seemed hardened against the general acceptance, or tolerance of LGBT persons. The Court said Botswana is not ready, but that if such a time came, that Botswana would be ready, the matter of decriminalising the Penal Code provisions could be revisited, accordingly. Government argued that even if there has been change, the change is not sufficient enough to reform the laws. Further, government’s position is that there is great influence from external factors that seek to have Batswana completely abandon the moral values that the Botswana Laws are premised on. Government further indicated that in it’s opinion, Courts should be measured and conservative and thus leave decisions that should be premised on public attitudes, to the Executive, who interact more directly with ‘the people of Botswana’.
The decision in this matter will be handed down by the Court, on the 11th June 2019, at the Gaborone High Court. The importance in this matter lies in its Constitutional significance. It brings to the fort, a need for interpretation of various Constitutional provisions as well as their effect. As argued by the Applicant, it is not only about the public opinion of a majority, but also a need to protect a prejudiced minority. The success of the matter is dependant on the strengths of the arguments made. In any event, history is made again, by Botswana.