Laws That Criminalise Sexual Diversity Are Contested In Court

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. 

Editor's Comment
Bravo police for prompt action

It is also hurting that whilst we all know that the Botswana Police Service (BPS) is charged functionally with the duties to investigate all forms of crime, some locals have resorted to taking the law into their own hands. It is very wrong to do that. There is also a possibility that one may wrongfully take the life of a person in the process, unless it is a justifiable case of self-defence. Recently, in the city of Francistown, some locals found...

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