Botswana scraps gay sex laws in another big victory for LGBT rights in Africa 

 I’ve never experienced that level of jubilation. The court exploded with excitement, we were all hugging, some were ululating. The media too. I’ve never experienced anything like it. It’s the kind of feeling you never want to go away.Cindy Kelemi, executive director of the Botswana Network on Ethics, Law and HIV/AIDS

Hundreds of LGBT campaigners, celebrities, and locals in Botswana’s High Court erupted in tears, hugs and whoops of joy when it decriminalized homosexuality on 11 June 2019.

The ruling overturned Sections 164 and 167 of Botswana’s Penal Code, a colonial-era law that banned “carnal intercourse against the order of nature” – an offence that carried a maximum sentence of seven years’ imprisonment. The court unanimously ruled that the legislation was discriminatory, unconstitutional and against the public interest.

Cindy Kelemi, executive director of the Botswana Network on Ethics, Law and HIV/AIDS – a strategic partner of Frontline AIDS – says:

“This is a big win for us – not just because the judge reminded us that we should be equal under the law, but also that discrimination based on sex is unconstitutional and crucially that sex means sexual orientation not just gender – in other words this ruling recognises a person’s right to identify as they choose.

What’s remarkable about this case is that it wasn’t begun by a network of NGOs or advocates, but by one gay man. Letsweletse Motshidiemang, a 21-year-old student at the University of Botswana, argued that society had changed and that homosexuality was more widely accepted. He asserted that the law as it stood denied him his constitutional right to dignity and privacy.

There’s no measure of a country’s ‘readiness’ for LGBT rights but previous rulings had given a hint – as they partially acknowledged the rights of lesbian, gay, bisexual and transgender people, including their right to equal protection before the law.

Following a brutal attack on a transgender woman last November, President Mokgweetsi Masisi signalled his support for same-sex relations in a speech in December 2018, in which he said LGBT citizens deserve to have their rights protected.

“We were fairly confident that we had created an environment for change. Over 15 years NGOs like Bonela and SALC had built a movement where LGBT people could know about their rights and create platforms where they could demand them. This meant engaging with the whole population public, parliamentarians, pastors, religious leaders – until we built a critical mass to change attitudes.

Christine Stegling, Executive Director of Frontline AIDS, adds:

“This decision is a beautiful example of hard work and personal commitment from so many activists and organisations eventually coming together.

“It’s important to remember that 15 years of hard work lies behind this result – years of personal investments and sacrifices in previous attempts to challenge these laws. We know that there are no quick wins in decriminalisation. It takes years of engagement and partnership to build a movement for change.

We know that there are no quick wins in decriminalisation. It takes years of engagement and partnership to build a movement for change.Christine Stegling, executive director, Frontline AIDS

In Botswana as in other countries the long-term goal is changing societal attitudes, and that’s a long, difficult process – but 100% worth it.”

Importantly, the High Court of Botswana has made it clear discrimination serves to hold back not only LGBT people, but society as a whole:

“Societal inclusion is central to ending poverty and fostering shared prosperity,” the judges said in their ruling. “Any discrimination against a member of the society is discrimination against all. To discriminate against another segment of our society pollutes compassion.”

Nothing could be taken for granted. Botswana’s ruling comes after Kenya’s high court had just upheld its discriminatory laws, keeping same sex relations punishable by 14 years in jail, in turn drawing strong criticism from the United Nations and rights activists.

However, homophobic attitudes still prevail in parts of Botswana as Cindy says:

“We still have a long away to go to engage all opposing factions. Already there have been noises that some people are worried about what this means for them. There are unconfirmed reports that there are petitions to reverse this decision. People are grappling with this new freedom. Whether it’s our religious community, our cultural community — we must engage with them to promote tolerance,”

Botswana is the latest country in Africa to decriminalise same-sex relations, following Angola in January, Seychelles in June 2016, Mozambique in June 2015 and Sao Tome and Principe, and Lesotho in 2012.All were given new impetus to decriminalize gay sex after India scrapped similar legislation last September.

Same-sex relationships are a crime in more than 70 countries across the world, almost half of which are in Africa – where they are punishable by imprisonment or even death. South Africa is the only African country to have legalised same sex marriage.

These relics of colonial-era laws are used daily to discriminate against LGBT people, making it harder for them to get work, rent housing or access health and education services.

“This is going to mean a massive change in all our lives said Cindy, not least accessing health and HIV services. Up until now the government has been reluctant to target services such as HIV prevention and testing for the LGBT community leaving it to NGOs instead.

That’s all about to change with every ministry in government reframing its policies, for example the ministry of education will need to look at the issue of the support of young trans people.

Work still needs to be done to transfer the implications of a legal ruling into the daily lives of people. But, for the moment, Cindy and thousands of activists are celebrating a landmark freedom and the benefits it will bring to the lives and health of Botswana’s LGBT community. This is the start of a revolution, not the end.

Read more about Frontline AIDS’ work in Botswana