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LGBTQ rights in Botswana

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LGBTQ rights in Botswana Botswana
Botswana
StatusIllegal since 1885 (as Bechuanaland Protectorate)[1]
PenaltyUp to 7 years imprisonment
Gender identity–

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 are illegal in Botswana.

Laws regarding same-sex sexual acts

According to the Botswana Penal Code:[2]

Section 164. Unnatural offences. Any person who-

(a) has carnal knowledge of any person against the order of nature; [or]

* * * *

(c) permits any other person to have carnal knowledge of him or her against the order of nature,

is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.

Section 165. Attempts to commit unnatural offences. Any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment for a term not exceeding five years.

Section 167. Indecent practices between persons. Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or private, is guilty of an offence.

Section 33. General punishment for offences. When in this Code no punishment is specially provided for any offence, it shall be punishable with imprisonment for a term not exceeding two years or with a fine, or with both.

Although same-sex sexual acts remain illegal, their prosecution is rare according to a 2004 publication.[3]

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.[4]

Recognition of same-sex relationships

Same-sex couples have no legal recognition.

Discrimination protections

The Employment Act has prohibited employment discrimination on the basis of sexual orientation since 2010.[5][6]

Living conditions

Homosexuality is a taboo subject in Botswana. It is commonly seen as a Western disease and un-African.[3]

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.[7]

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 Company that during his 10 years in office, he had instructed police not to arrest or harass gays. "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."[8]

The U.S. Department of State's 2011 Human Rights Report found that, "The 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."[9]

Civil society organizations

Botswana's primary LGBT rights organization is "Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo)". The government has twice rejected its application to be registered; therefore, LeGaBiBo's ability to raise funds is 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".[10] In 2013, fourteen members of LeGaBiBo engaged Unity Dow to sue the Botswana government to force it to register the organisation.[11] The High Court ruled in November 2014 that LeGaBiBo must be registered.[12] The government appealed the ruling and on 16 March 2016, the Botswana Court of Appeal ruled that the government's refusal to register LeGaBiBo was unconstitutional.[13][14]

Summary table

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

See also

References

  1. ^ Where is it illegal to be gay?
  2. ^ Botswana Penal Code, Chapter 08:01
  3. ^ a b Mookodi, Godisang (2004). "Botswana" (PDF). Continuum Complete International Encyclopedia of Sexuality. p. 92. Retrieved 12 December 2012.
  4. ^ "City of Gaborone calls for an end to gay ban in Botswana". MambaOnline. 1 April 2016.
  5. ^ State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults
  6. ^ Botswana's LGBT community marches through the capital's streets to mark the International Day against Homophobia and Transphobia
  7. ^ "Just like Mugabi I hate gays – MP Moatlhodi", The Botswana Gazette, reported by Daniel Kenosi, 9 February 2011
  8. ^ "Sticky sodomy case has Botswana gays flustered", Sapa-AFP, reprinted on the Internet by TimesLive, 16 March 2011
  9. ^ 2011 Country Reports on Human Rights Practices: Botswana, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 19
  10. ^ "Botswana Gay Group Denied Registration - Again", Mambaonline.com, 23 April 2012
  11. ^ "Gays enlist Dow to sue govt for non-recognition", Sunday Standard, reported by Khonani Ontebetse, 7 April 2013
  12. ^ "Botswana gay rights group wins landmark case", "BBC News", 14 November 2014
  13. ^ Hogan, Ashley (17 March 2016). "Botswana court rules in favor of LGBT rights group". JURIST.
  14. ^ Botswana's top court rejects government bid to ban gay rights group
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