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Botswana makes history and decriminalises same-sex intimacy

Today, the High Court of Botswana delivered a landmark ruling declaring the criminalisation of homosexuality to be incompatible with the country’s constitution. Same-sex intimacy had been criminalised in the country under the penal code of 1964.


In a unanimous decision, the three justices struck down the provisions prohibiting “carnal knowledge of a person against the order of nature”, and the corresponding seven-year prison term. Additionally, the offence of “gross indecency” was ruled to be unconstitutional as applied to acts committed in private.


Reading the ruling, Justice Michael Lebaru declared: “A democratic nation is one that embraces tolerance, diversity, and open mindedness… societal inclusion is central to ending poverty and fostering shared prosperity.” Justice Lebaru further noted that decriminalising same-sex intimacy protects the constitutional rights of LGBT+ persons to dignity, liberty, privacy and equality.


Kaleidoscope Trust, the UK’s leading international LGBT+ charity, is a founding member and current Secretariat of  The Commonwealth Equality Network (TCEN), a group of 51 organisations working collectively to advance equality for LGBT+ people across the Commonwealth. This ruling is a significant progressive step for LGBT+ equality and Botswana joins a growing list of countries which have decriminalised in recent years.


Anna Mmolai-Chalmers, CEO of LEGABIBO, our TCEN partner in Botswana and one of the leading LGBT+ groups working on the case, said:


It has taken a long time for our community to be where it is. This incredibly life-changing decision, although it does not right all the wrongs done to individual members of the LGBT community, is a step towards restoring our dignity as human beings. The decision has several implications for the LGBTIQ community. Not only does it provide legal affirmation and recognition of the rights of LGBTIQ persons, but it allows an important space for addressing public health issues more efficiently and effectively. We can finally start building a more tolerant society. The real work starts now.


Reflecting on the ruling, Kaleidoscope Trust’s Acting Executive Director, Jesse Sperling, said:


"Today's judgement from the High Court is historic for the equality of sexual and gender minorities, as Botswana joins a growing number of countries moving along the path to ensuring equality for all.  The ruling stands in especially strong contrast to the recent disappointment in Kenya, by recognising that laws criminalising homosexuality are unequivocally wrong and that the ability to love who you love is fundamental to human dignity. We at Kaleidoscope Trust and our partners in The Commonwealth Equality Network strive to achieve positive change such as this, and we share in the celebration of this victory with the LGBT+ communities of Botswana and pay tribute to the sacrifice of all those who worked so hard to make this a reality."


Recent litigation in a number of other countries, such as India, Trinidad & Tobago and Belize, has been successful in challenging criminalising laws and creating change. This past April, as a result of campaigning by TCEN member organisations,  British Prime Minister Theresa May expressed her “deep regret” for Britain’s history of exporting colonial-era discriminatory laws including those which criminalise LGBT+ people including Botswana. She said "I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now."


During the Commonwealth Heads of Government Meeting, hosted by the UK Government earlier this year, the UK Government announced a £5.6 million programme to build fairer, more equal and more inclusive Commonwealth societies by supporting countries seeking to reform laws that discriminate against women and girls and LGBT+ people.


The Equality & Justice Alliance – a consortium composed of international NGOs Kaleidoscope Trust, Human Dignity Trust, The Royal Commonwealth Society and Sisters For Change – will engage with Commonwealth leaders, governments and civil society actors to advance equality and equal protection before the law in order to secure the rights of all Commonwealth citizens, regardless of gender, sex, sexual orientation, or gender identity and expression. 


LEGABIBO’s press release can be found here and  TCEN’s statement can be found here.