Today marked the beginning of a progressive new era in the rights of LGBTIQ+ individuals in Botswana. The High Court ruled to decriminalise same-sex intercourse, interpreted in our colonial era penal code under ‘carnal knowledge’, ‘unnatural acts’ and ‘immoral acts’. The beauty of the judgement lies in its scope, as it canvasses all possible opposition ranging from public opinion, morality, the bible, Africaness to privacy. Although the announcement started with an unsettling reference to bible passages in reviewing the history of the country’s laws which made the court room tense.
In addition, Kenya’s upholding of criminalisation certainly influenced expectations. As the judgement being read reached the end of the second hour, one of the lawyers requested a break further heightening my tension and those around me. We did not know what to anticipate. In hindsight, it was important for the judges to reflect and deliberate on all issues in a comprehensive manner by using foreign law, international law and soft law to build on the precedence set in previous cases in Botswana. It was an electrifying intellectual play of lawyering and thought leadership. In the third hour, I came to love how the three arms of government where referred to in Botswana’s progression; a) parliament’s role as a virtue of being elected in prohibiting the termination of employment on the basis of sexual orientation, b) previous court cases that spoke of Botswana’s readiness for accepting homosexuals and, aptly deliberating on the irrelevance of social measures for protecting a group’s rights within a democratic society and c) expanding on the role of the courts in upholding the rule or law and its scope for constitutional deliberations. The last is significant particularly because the Court of Appeal in the Rammoge v Attorney General case previously removed constitutional declarations of the High Court due to the scope of the petition. It is a new era for the entire community because despite its diversity, the discarded laws have often been interpreted to include other aspects beyond sexual orientation. It is an exciting time to be alive. This marks a new ball game for all actors in the movement to ensure protections are built in and beyond law. Well done to all activists, enablers and allies who have done immense work towards this achievement. We hope this sets an example for reform throughout the continent.
By Dumiso Gatsha (Botswana)