Congratulations to the LEGABIBO organization

Landmark judgment on decriminalization in Botswana

Deutsche Fassung hier

Good news from Botswana – on 11 June 2019 the country’s High Court lifted the ban on homosexual practices! Activists at the courtroom in the capital city of Gabarone broke into cheers and waved rainbow flags.

This landmark judgment, which resonates well beyond the borders of Botswana, will hopefully serve as a model in Africa and other Commonwealth nations! Our congratulations to the lesbians, gay men and bisexuals of Botswana and especially to the LEGABIBO organization (Lesbians, Gays and Bisexuals of Botswana), because it was instrumental in filing and successfully representing the case.

Criminalization violates the right to privacy

It is worth the effort to fight for rights – also and especially at court. Strategic litigation works. As recently as 2016, LEGABIBO sued to enable its own registration as an organization, which was initially denied to it on the basis of these sections of the penal code.

The three judges were unanimous in their decision that parts of sections 164, 165 and 167 violate Botswana’s constitution and should therefore no longer be valid. Among other things, they noted that in a conflict between basic rights and moral values, the law must uphold rights. Criminalization violates the right to privacy, which is a fundamental right. It is not for the law to choose a person’s intimate partner. Sexual orientation is innate to a human being, and not a question of fashion.

There is nothing reasonable by discriminating”

The laws are discriminatory because they deny human dignity and liberty. “There is nothing reasonable and justifiable by discriminating against fellow members of our diversified society,” wrote Judge Michael Leburu.

The court’s decision is also noteworthy for its reference to how the law came into being. On page 28 it reads: “The offence of ‘sodomy’ was imported into the British colonies between the 17th and 20th centuries.”

According to the decision, two studies are key in this context: the 2008 study from Human Rights Watch entitled This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism (LINK), and the 2011 report by Michael Kirby entitled “The Sodomy Offence, England’s Least Lovely Criminal Law Export” published in the Journal of Commonwealth Criminal Law. Studies, too, have an effect. Here one can see how important it is to examine the background and consequences of colonialism.

Regarding future decisions in other countries, of interest is the statement that the penalized behavior is unclear, vague and inadequately defined. The vagueness of Victorian notions like “carnal knowledge against the order of nature” (section 164) and “indecent practices between persons” (section 167) violates the basic principle that laws must be formulated in clear and certain terms.

Botswana (officially the Republic of Botswana) is a country in southern Africa that borders South Africa to the south and southeast, Zambia and Zimbabwe to the northeast, and Namibia to the north and west. Before acquiring independence in 1966, it was part of the British Bechuanaland Protectorate. Introduced in the 19th century, the laws against homosexuality are a legacy of British colonialism.

Sarah Kohrt, LGBTI-Platform Human Rights

  • New York Times Article
  • Website von LEGABIBO, Lesbians, Gays and Bisexuals of Botswana
  • This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism
  • The Sodomy Offence, England’s Least Lovely Criminal Law Export“ Report by Michael Kirby
  • Global Interfaith Network: Statement on Botswana Decrim
  • Decriminalization: our guidelines for international support — Proposed by the Hirschfeld-Eddy Foundation
  • Closing Space and the freedom of association — Video Message by Monica Tabengwa, Pan Africa ILGA on the LEGABIBO Botswana court case, other cases of freedom of association in Uganda, Kenya and Nigeria and on the importance of the right to register
  • The Long, Successful Fight to Decriminalise Same-Sex Relations in Botswana — Event with Caine Youngman, LEGABIBO in Berlin, July 18 2019

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