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LGBT ruling: Let’s take our people along

Publishing Date : 18 June, 2019

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Following the ruling of the High Court of Botswana this week on 11th June 2019, on the history decision in the Letsweletse Motshidiemang v The Attorney General and Another case of decriminalising consensual sex, the real work has now begun. Public education will have to be top of the agenda to help our communities to accept the LGBT community.


The unanimous decision by the three judge bench consisting of Judge Tafa, Leburu and Dube effectively struck down S164 (a) and (c) and S165 which criminalized consensual same sex sexual conduct and have removed “private” from acts of gross indecency criminalized under S167. In its decision, the Court held that these sections of the law invaded people’s private space and amounted to an “overregulation of human conduct”. Although the Court held that the sections were clear and so should not be voided for vagueness as argued by the plaintiff; the court did invoke powers conferred to it by the Constitution to change the law.


With this ruling, Batswana’s attitudes about gays and lesbians have to change dramatically in the next installment of life, and the LGBT community is acutely aware of this. These necessary changes in attitudes mean that LGBT adults should feel more accepted by society now than in the past. The ruling has also given rise to a nearly universal sense of optimism about what lies ahead for this community in Botswana. The question remains, Is our society ready to accept them openly?


The LGBT is going to demand that it should not be treated unfairly because of their sexual orientation or gender identity—through experiences ranging from poor service in restaurants and hotels to threats and physical attacks. Our people should be ready to deal with the consequences of the landmark ruling that has received raving reviews from international media.


In the eyes of LGBT community, greater social acceptance will come as a result of more Batswana knowing someone who is lesbian, gay, bisexual or transgender as well as the efforts of high-profile public figures. Studies have shown elsewhere that individuals simply knowing someone who is LGBT has helped a lot in terms of making society as a whole more accepting.


A similar majority say well-known public figures who are open about being LGBT help make society more accepting. Meanwhile LGBT are of the view that public figures who support LGBT issues but are not LGBT themselves are equally helpful in terms of increasing public acceptance. This week BONELA released a statement applauding the applicant for his selfless actions that brought to light and put a face to the effects of S164, 165 and 167 on the LGBTI community.


BONELA also applauded the Court for adopting a progressive stance; one that recognizes that the law should be allowed to grow and so work for Batswana of the 21st century. In its ruling, the Court recognized that the Penal Code sections in question infringed on the right to privacy, liberty, dignity, did not afford LGBTI people equal protection of the law and were in effect discriminatory in nature. Infringements that have no place in a tolerant and inclusive society. These are a baby steps, with NGOs stepping in to welcome the decision of the court, which could help the LGBT community to be accepted by society. It is going to be a long, riddled road, but it is achievable.


Effectively, the ruling means that the law is now reformed to reflect the changing realities of Batswana; BONELA has thus called on duty bearers to adopt practice that reflects this. Going forward, we need to make a deliberate effort to adopt a rights based approach to service delivery, providing services to all – indiscriminately- and providing targeted prevention commodities so as to prevent new HIV infections.


Here is what the European Union Delegation in Botswana said on the ruling: “Our societies are stronger when they accept, respect and value diversity of individuals and groups. As the Court said “any discrimination against a member of society is discrimination against all”. “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”, said Anna Mmolai-Chalmers, LEGABIBO’s CEO.



The High Court judges questioned the purpose of these laws: “What regulatory joy and solace is derived by the law, when it proscries and criminalises such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precint? Is this not a question of over-regulation of human conduct and expression, which has the effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights.” The Court continued: “Personal autonomy on matters of sexual preference and choice must therefore be respected. Any criminalisation of love or finding fulfillment in love dilutes compassion and tolerance.”

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