The Botswana Court of Appeals held a hearing on reinstating the criminalization of same-sex relations after the state appealed a 2019 ruling by the High Court to decriminalize.
A full bench of the High Court of Botswana had ruled unanimously to strike down section 164(a) and (c), and section 167 of the Penal Code inherited from British Colonizers, which widely criminalized LGBTQI people for ‘crimes committed against the order of nature.”
The court of origin ruled that the provisions are discriminatory and, in particular, highlighted that “a democratic society is one that embraces tolerance, diversity and open-mindedness” and that “societal inclusion is central to ending poverty and fostering shared prosperity.” The State appealed the court’s decision, claiming that this is a policy matter which only the Parliament can assess.
” Based on the clear law one can hardly imagine a ruling that could reverse the globally celebrated original court’s ruling, also noting neighboring South Africa and Angola have embraced full equality and decriminalization, respectively. However over 30 countries on the continent of Africa still criminalize SOGIESC.
The mere fact that the State appealed the ruling is indicative that anti-LGBTQI sentiment within the country itself has a long way to catch up to where the law stands at this moment. However it is important to note that there has been no backlash as a result: Let’s hope the Justices are more swayed by good legal argument, equality and fairness, rather than antiquated sentiment, so deeply misunderstood.” Melanie Nathan ED, AHRC.
A decision by the Court of Appeals is expected in the next 4-6 weeks.
A recording of the hearing held today can be viewed here.