OutPower

High Court of Botswana Decriminalizes Homosexuality

Last Tuesday, LGBTQ people in Botswana rejoiced after the nation’s High Court struck down laws that criminalized homosexuality. Botswanans found guilty of violating the now invalid law faced up to seven years in prison. After the High Court ruled that the country’s citizens may legally change their gender identity a year and a half ago, the decriminalization of homosexuality is the latest legal win for LGBTQ Botswanans. The historic landmark decision is a progressive move for the southern African country, as homosexuality is illegal in 28 countries throughout sub-Saharan Africa.

Most laws that prohibit homosexual activity originate from Africa’s colonial-era, in which European powers colonized the continent and enacted laws that continue to oppress LGBTQ people to this day. Enforced during British rule, section 164 of the Botswanan penal code declared homosexuality to be “carnal knowledge of any person against the order of nature”. A few weeks before the recent Botswana decision, Kenya’s High Court upheld its own law criminalizing same-sex relations in a high-profile court case. Nevertheless, the Republic of Botswana followed in the footsteps of Angola, a southern African nation that decriminalized same-sex activity earlier this year.

Botswana’s High Court concluded that jailing people for who they love is discriminatory, and that the government has no business regulating private affairs among consenting adults. It also helped that the ruling party of the government has expressed support for LGBTQ rights. According to the Botswana People’s Daily Newspaper, Botswanan President, Mokgweetsi Masisi said, “There are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected.” President Masisi’s quote was referenced in the High Court’s final decision.

LEGABIBO, the first LGBTQ organization in Botswana, played an instrumental role in persuading the High Court to overturn the same-sex activity prohibition law. The organization’s legal policy director, Caine Youngman, helped to represent the anonymous plaintiff in the national court case. In 2012, a government agency would not allow LEGABIBO to register as a nonprofit because it claimed that the country’s constitution did not recognize LGBTQ people. However, in 2016 an appeals court ruled that LEGABIBO could be legally recognized as a nonprofit organization. The impact of LEGABIBO highlights the importance of the LGBTQ community’s right to assemble and petition the government. Furthermore, it shows LGBTQ leaders accomplish when civically engaged and politically empowered. In order to govern successfully, governments must recognize LGBTQ leaders as equal citizens . On Tuesday, June 11, 2019, Botswana took an important step towards opportunity for its LGBTQ citizens.

The LGBTQ Victory Institute is dedicated to electing LGBTQ leaders in the United States and around the world. In South Africa, a nation that borders Botswana from the south, Victory hosts an annual LGBTQ Political Leadership Learning Institute. The program works with the Triangle Projec to provide LGBTQ leaders with the skills needed to participate in the political process and hold public office positions. 

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