Botswana became the latest country to decriminalize gay sex on Tuesday when the High Court rejected as unconstitutional sections of the penal code that punish same-sex relations with up to seven years in prison.
Jubilant activists in the packed courtroom cheered the unanimous decision in the southern African nation. It came less than a month after Kenya’s High Court had upheld similar sections of its own penal code in another closely watched case.
More than two dozen countries in sub-Saharan Africa have laws criminalizing gay sex. Earlier this year, the southern African nation of Angola also decriminalized same-sex activity and banned discrimination based on sexual orientation.i
Those arguing against the laws criminalizing gay sex say they leave people in the LGBT community vulnerable to discrimination and abuse while making it difficult to access basic health and other services.
The Botswana-based non-governmental group LEGABIBO, which supported the anonymous petitioner in the case challenging the sections of the penal code, has said such laws “infringe on basic human dignity.”
Tuesday’s ruling led to rejoicing by rights groups that had expressed frustration with the Kenyan decision last month.
Botswana’s High Court said in its ruling that penalizing people for who they are is disrespectful, and that the law should not deal with private acts between consenting adults.
The right to privacy includes sexual orientation, which is innate and not a fashion statement, the judges said.
The ruling also cited the recent decriminalization in India and elsewhere. It also pointed out that all three arms of Botswana’s government have expressed the need to protect the rights of the gay community.
Ahead of the ruling, LEGABIBO shared a comment attributed to President Mokgweetsi Masisi: “There are also many people of same-sex relationships in this country who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected.”