While the threat of draconian penal codes still looms for LGBTI people in Botswana
By Melanie Nathan, November 15, 2014.
The Gaborone High Court ruled that the Botswana government is compelled to register the LGBTI group, group LEGABIBO, (Lesbians, Gays and Bisexuals of Botswana). This order was sought after registration of the organization was refused by the Ministry of Labor and Home Affairs in 2012 because the ministry claimed that Botswana’s Constitution does not recognize homosexuals. However the threat of the draconian penal code with 7 years in prison stands as active legislation and a tool of possible persecution against LGBTI people in Botswana.
It also argued that it could not register any group that “is likely to be used for any unlawful purpose or any purpose prejudicial to or incompatible with peace, welfare or good order in Botswana.”
The case was brought by 20 individuals who argued that the refusal to register their organisation violated their constitutional rights, including their rights to freedom of association, freedom of expression, and equal protection of the law.
The court agreed and ruled that the government’s discriminatory action was indeed unconstitutional.
“We are overjoyed at the outcome of the case. Lesbians, gays and bisexuals have long strived to be able to form an organisation which can support them and be their voice on matters that affect them,” commented Caine Youngman, LEGABIBO Coordinator.
“It has been a long and arduous journey towards recognition and we are relieved that the court has protected our rights,” he said.
What is important about this ruling is the fact that there is no law barring the organization from existing and that it has an equal right to exist. However one must also note that the existing Penal Code does not outlaw same-sex relationships, though it does prohibit certain behaviors that serves to target especially LGBTI people.
The egregious aspect of the oppression of rights in Botswana still lies in the Botswana penal code that can criminalize same-sex sexual conduct in private between consenting adults:-
Articles 2(1), 17, and 26 of the ICCPR.
Section 164 provides that:
“Any person who- (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits any other person to have carnal knowledge of him or her against the order of nature; is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.”
Section 167 of the Penal Code Act, Chapter 8 of the Laws of Botswana, 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 sad part of what is going in Africa, in general at this time, is the stepped up Anti-Homosexuality legislation which seeks to outlaw LGBTI relationships in addition to the sexual behavior aspects. Hence we are seeing Anti-Homosexuality legislation popping up to include so called “promotion” of homosexuality in countries such as Uganda, Ghana, and Nigeria, by way of example. Let us hope that this case does not cause a backlash in Botswana. Until now there have been few to no prosecutions against gays and lesbians in Botswana.
While this case is a stunning victory for LGBTI Botswana, we cannot forget that the old penal codes still serve as state sanctioned persecution impacting stigma, maintaining stereotyping as well as all the negative aspects associated with driving key populations with HIV/AIDS underground.