LGBT rights in Botswana

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Botswana (orthographic projection).svg
StatusLegal since 2019[1]
Gender identityChanging gender recognised as a constitutional right
MilitaryNo
Discrimination protectionsYes, constitutional protections for sexual orientation
Family rights
Recognition of relationshipsNo
AdoptionNo

Lesbian, gay, bisexual, and transgender (LGBT) persons in Botswana face legal issues not experienced by non-LGBT citizens. Both female and male same-sex sexual acts have been legal in Botswana since 11 June 2019 after a unanimous ruling by the High Court of Botswana.[1][2]

In recent years, the LGBT community has become more visible and accepted among Botswana's population.[3] The Botswana High Court has been at the forefront of LGBT rights in the country. In 2016, it ordered the Government to register Botswana's main LGBT organisation, LEGABIBO, and in 2017 it ruled that transgender people have a constitutional right to change their legal gender.[4] In 2019, it struck down colonial-era laws banning homosexuality. Employment discrimination on the basis of sexual orientation has been banned since 2010 in Botswana, making it one of the few African countries to have such protections for LGBT people.

LEGABIBO is the country's main LGBT advocacy group, and promotes awareness and acceptance of LGBT people.

History[edit]

Homosexuality and same-sex relations have been documented among various modern-day Botswanan groups. In the 18th century, the Khoikhoi people recognised the terms koetsire, which refers to a man who is sexually receptive to another man, and soregus, which refers to same-sex masturbation, usually among friends. Anal intercourse and sexual relations between women also occurred, though more rarely. The San people similarly did not regard homosexuality negatively, and various rock paintings depicting anal intercourse between men exist to this day.[5] The Tswana people, a Bantu ethnic group who make up the majority of Botswana's population, also have a local term to refer to homosexuality. The Tswana term matanyola, which literally translates to "anal sex", has long been used to refer to homosexuals. Prior to colonisation, Tswana society did not share the Western concepts of sexuality and gender. Many Tswana men would have sex with men, but also have wives. Homosexuality was not viewed as an antithesis to heterosexuality. Indeed, there was widespread liberty to move between the two, and engage in sexual activity with both men and women.[6] Traditional dikgosi (local Tswana chiefs) argue that homosexuality has always existed in Tswana society, and that such individuals should be respected.[7]

This relative openness and indifference towards homosexuality disappeared after Botswana (then known as the Bechuanaland Protectorate) became a British protectorate in the 19th century and began enforcing Victorian era laws and social policies.

Legality of same-sex sexual acts[edit]

Same-sex sexual acts became legal on 11 June 2019. Previously, sodomy, whether heterosexual or homosexual, was criminalised, punishable by up to 7 years' imprisonment. The law criminalising such sexual activity applied to both men and women. Initially, its application was limited to men only (similar to other colonies of the British Empire), however, a Botswana court found this to be discriminatory and that the law should apply to women as well.[8]

Although same-sex sexual acts remained illegal until June 2019,[9] their prosecution was rare according to a 2004 publication.[10]

On 30 March 2016, the Gaborone City Council unanimously approved a motion calling for the repeal of Botswana's criminalisation of same-sex sexual acts.[11]

A student at the University of Botswana was the lead plaintiff in a case to legalise homosexuality in Botswana. In November 2017, LeGaBiBo successfully applied to join the case as a friend of the court. The lawsuit sought to declare Section 164(a) and 167 of the Penal Code unconstitutional because "they interfere with his [the student's] fundamental right to liberty, freedom of privacy, as well as his right to use his body as he sees fit." However, the Deputy Attorney General, on behalf of the Government, argues that these sections were constitutional because they prohibited certain sexual acts, which may be conducted by those of all sexual orientations, whether heterosexual or homosexual, and thus that these laws do not discriminate based on sexual orientation. Initially, the High Court was supposed to hear the case in March 2018.[12][13] In February, however, the Deputy Attorney General asked for more time to respond to the plaintiffs' claims. As such, the High Court moved the hearing to 31 May 2018.[14] The case was then postponed again.[15] On 6 December 2018, the Court re-scheduled the hearing for 14 March 2019.[16][17][18] LGBT activists presented their arguments at the hearing and were given a date of 11 June for the judgement.[19][4]

On 11 June, the High Court decriminalized same-sex sexual activity by unanimously declaring that section 164 of Botswana's Penal Code was unconstitutional.[1] The judgement was welcomed by the ruling Botswana Democratic Party (BDP).[20] Judge Michael Leburu further said that such laws "deserve a place in the museum or archives and not in the world".[21]

"Human dignity is harmed when minority groups are marginalized." ... "Sexual orientation is not a fashion statement. It is an important attribute of one's personality".

— Judge Michael Leburu

Recognition of same-sex relationships[edit]

Same-sex couples have no legal recognition, whether in the form of marriage or civil unions.

Discrimination protections[edit]

The Employment Act 2010 has prohibited employment discrimination on the basis of sexual orientation since 2010.[22][23]

In June 2019, the High Court of Botswana ruled that "sex", as defined in Section 3 of the Botswana Constitution, should be "generously and purposively interpreted" so as to include "sexual orientation". Carmel Rickard, legal columnist at the University of Cape Town, writing for the African Legal Information Institute, said, "The impact of this finding is significant and could well mean that the local LGBTI will have an even stronger, constitutionally-based argument for any further challenge to discrimination. It also has the effect that, thanks to judicial interpretation, Botswana's constitution now joins that of South Africa in outlawing discrimination based on sexual orientation."[24]

On the basis of the formulated rules of constitutional construction or interpretation, I have no qualms whatsoever in determining that the word 'sex' in Section 3 is wide enough to include and capture 'sexual orientation', as I hereby determine.

— Judge Michael Leburu

Gender identity and expression[edit]

In September 2017, the Botswana High Court ruled that the refusal of the Registrar of National Registration to change a transgender man's gender marker was "unreasonable and violated his constitutional rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment". LGBT activists celebrated the ruling, describing it as a great victory.[25][26] At first, the Botswana Government announced it would appeal the ruling, but decided against it in December, supplying the trans man with a new identity document that reflects his gender identity.[27]

A similar case, where a transgender woman sought to change her gender marker to female, was heard in December 2017. The High Court ruled that the Government must recognise her gender identity.[28] She dedicated her victory to "every single trans diverse person in Botswana".

Living conditions[edit]

Homosexuality has typically been a taboo subject in Botswana, and has been historically seen as a "Western disease" and "un-African",[10] though the early 21st century has seen major advances in the societal perceptions of LGBT people.[13]

In February 2011, the Deputy Speaker of the Botswana National Assembly, Pono Moatlhodi, responded to a proposal to provide condoms to prison inmates engaging in same-sex sexual acts. Moatlhodi said that if he had the power, he would have those who practice homosexuality killed. Moatlhodi further said that inmates should learn that by having chosen to break the law, they were imprisoned and thus were responsible for starving themselves of sex.[29]

In 2010 and 2011, former Botswana President Festus Mogae spoke out against sexual discrimination, saying prejudice was hindering efforts to fight HIV in a country where one in four adults had the disease. "We do not want to discriminate. Our HIV message applies to everybody. If we are fighting stigma associated with sex, let's apply it to sexual discrimination in general." He told the British Broadcasting Corporation (BBC) that during his 10 years in office, he had instructed police not to arrest or harass gay people. "I could not change the law because that would be unnecessarily stirring up a hornet's nest. I was not willing to lose an election on behalf of the gays. The majority of our people are still opposed [to homosexuality] so I must convince them first before changing the law unilaterally."[30]

The U.S. Department of State's 2011 Human Rights Report found that "[t]he country has no law explicitly criminalizing consensual same-sex sexual activity. However, what the law describes as 'unnatural acts' are criminalized, and there is widespread belief this is directed toward gay, lesbian, bisexual, and transgender persons. Police did not target same-sex activity, and there were no reports of violence against persons based on their sexual orientation or gender identity during the year."[31]

In September 2016, responding to the deportation of American anti-gay pastor Steven Anderson from Botswana, President Ian Khama said that "we don't want hate speech in this country. Let him do it in his own country."[32]

In November 2018, President Mokgweetsi Masisi, speaking to a crowd, said:[33]

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.

On 11 June 2019, the ruling Botswana Democratic Party (BDP) welcomed the judgement of the High Court that decriminalised homosexuality.[20]

Civil society organizations[edit]

Botswana's primary LGBT rights organization is LEGABIBO. The Government has twice rejected its application to be registered; therefore, the group's ability to raise funds was limited. The registrar said that it could not register any group that "is likely to be used for any unlawful purpose or any purpose prejudicial to or incompatible with peace, welfare or good order in Botswana".[34] In 2013, fourteen members of LeGaBiBo engaged Unity Dow to sue the Botswana Government to force it to register the organisation.[35] The High Court ruled in November 2014 that LEGABIBO must be registered.[36] The Government appealed the ruling and on 16 March 2016, the Botswana Court of Appeal unanimously ruled that the Government's refusal to register LEGABIBO was unlawful.[37][38]

Public opinion[edit]

A 2016 Afrobarometer opinion poll found that 43% of Batswana would welcome or would not be bothered by having a homosexual neighbour.[39]

Studies conducted by the Afrobarometer have found that young Botswanans are more tolerant of gays.[13]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 2019)
Equal age of consent Yes (Since 2019)
Anti-discrimination laws in employment only Yes (Since 2010)
Anti-discrimination laws in the provision of goods and services Yes (Since 2019)[24]
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) Yes (Since 2019)[24]
Same-sex marriages No
Recognition of same-sex couples No
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT allowed to serve openly in the military No
Right to change legal gender Yes (Since 2017)
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood No

See also[edit]

References[edit]

  1. ^ a b c Fox, Kara (11 June 2019). "Botswana scraps gay sex laws in big victory for LGBTQ rights in Africa". CNN. Retrieved 11 June 2019.
  2. ^ "Botswana decriminalises homosexuality". BBC. 11 June 2019. Retrieved 11 June 2019.
  3. ^ Batswana warm up to gays, study shows
  4. ^ a b "Botswana High Court postpones ruling on decriminalizing gay sex". Gay Star News. 14 March 2019. Retrieved 15 March 2019.
  5. ^ Boy-Wives and Female Husbands
  6. ^ Scott Long, A. Widney Brown, Gail Cooper. More Than a Name: State-sponsored Homophobia and Its Consequences in Southern Africa, Human Rights Watch, 2003
  7. ^ Botswana chiefs: 'Homosexuality has always been here'. Erasing 76 Crimes, 26 July 2013
  8. ^ Why More And More Countries Are Making It Illegal To Be A Lesbian Or Bi Woman
  9. ^ Powys Maurice, Emma (11 June 2019). "Botswana LGBT activists present arguments to decriminalise gay sex". Pink News. Retrieved 11 June 2019.
  10. ^ a b Mookodi, Godisang (2004). "Botswana" (PDF). Continuum Complete International Encyclopedia of Sexuality. p. 92. Archived from the original (PDF) on 14 February 2012. Retrieved 12 December 2012.
  11. ^ "City of Gaborone calls for an end to gay ban in Botswana". MambaOnline. 1 April 2016.
  12. ^ For LGBT Rights, 2018 Will Be the Year of the Courts, Human Rights Watch
  13. ^ a b c Fresh bid to decriminalise homosexuality, Mmegi Online
  14. ^ LEGABIBO files evidence in sodomy case
  15. ^ "Gays recognition case postponed". Mmegi Online. 31 May 2018.
  16. ^ Botswana High Court sets new date to consider decriminalising homosexuality
  17. ^ "Botswana High Court to hear landmark case on decriminalising homosexuality". Mambaonline. 5 March 2019.
  18. ^ "Gay sex case before full High Court bench next week". TheVoiceBW. 6 March 2019.
  19. ^ "Botswana LGBT activists present arguments to decriminalise gay sex · PinkNews". www.pinknews.co.uk. Retrieved 15 March 2019.
  20. ^ a b The Ruling Party Welcomes Judgement Ddrciminalization Of Consensual Same-Sex In Botswana, Botswana People's Daily Newspaper, Facebook
  21. ^ "Botswana legalises gay sex". The Economist. 15 June 2019.
  22. ^ State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 17 October 2012 at the Wayback Machine
  23. ^ Botswana's LGBT community marches through the capital's streets to mark the International Day against Homophobia and Transphobia
  24. ^ a b c Carmel Rickard (13 June 2019). "It's Not Just Sex: Sexual Orientation Discrimination No Longer Allowed By Botswana's Constitution". AfricanLII.
  25. ^ Botswana: Activists Celebrate Botswana's Transgender Court Victory
  26. ^ Press Release: Botswana High Court Rules in Landmark Gender Identity Case
  27. ^ “Sweet closure” as Botswana finally agrees to recognise trans man, Mambaonline
  28. ^ "Botswana to recognise a transgender woman's identity for first time after historic High Court ruling". independent.co.uk. 18 December 2017.
  29. ^ "Just like Mugabi I hate gays – MP Moatlhodi", The Botswana Gazette, reported by Daniel Kenosi, 9 February 2011
  30. ^ "Sticky sodomy case has Botswana gays flustered", Sapa-AFP, reprinted on the Internet by TimesLive, 16 March 2011
  31. ^ 2011 Country Reports on Human Rights Practices: Botswana, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 19
  32. ^ Botswana to deport anti-gay US pastor Steven Anderson BBC News
  33. ^ Botswana | New president acknowledges LGBTI people’s rights. Mambaonline, 10 December 2018
  34. ^ "Botswana Gay Group Denied Registration - Again", Mambaonline.com, 23 April 2012
  35. ^ "Gays enlist Dow to sue govt for non-recognition", Sunday Standard, reported by Khonani Ontebetse, 7 April 2013 Archived 14 April 2013 at the Wayback Machine
  36. ^ "Botswana gay rights group wins landmark case", "BBC News", 14 November 2014
  37. ^ Hogan, Ashley (17 March 2016). "Botswana court rules in favor of LGBT rights group". JURIST.
  38. ^ Botswana's top court rejects government bid to ban gay rights group
  39. ^ Africa’s most and least homophobic countries

External links[edit]