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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 identityChanging gender recognised as a constitutional right

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.

In recent years, the LGBT community has become more visible and accepted among Botswana's population.[2] 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 and in 2017 it ruled that transgender people have a constitutional right to change their legal gender. It was scheduled to hear a case seeking to legalise homosexuality in Botswana in May 2018, but this has been postponed.

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

Legality of same-sex sexual acts

According to the Botswana Penal Code:[3]

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.

Previously, the law only applied to men. However, a Botswana court found this to be discriminatory and that the law should apply to women as well.[4]

Although same-sex sexual acts remain illegal, their prosecution is rare according to a 2004 publication.[5]

Decriminalisation efforts

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.[6]

A student at the University of Botswana is currently 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 seeks 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 are constitutional because they prohibit 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.[7][8] 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.[9] The case was then postponed again.[10] It is now unknown when the case will be heard.

Recognition of same-sex relationships

LGBT flag map of Botswana

Same-sex couples have no legal recognition.

Discrimination protections

The Employment Act 2010 has prohibited employment discrimination on the basis of sexual orientation since 2010.[11][12]

Gender identity and expression

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.[13][14] At first, the Botswana Government announced it would appeal the ruling, but decided against it in December, supplying the transman with a new identity document that reflects his gender identity.[15]

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.[16] She dedicated her victory to "every single trans diverse person in Botswana".

Living conditions

Homosexuality is a taboo subject in Botswana. It is commonly seen as a Western disease and un-African.[5]

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.[17]

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 (BBC) 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."[18]

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."[19]

In September 2016, responding to the deportation of an American anti-gay pastor from Botswana, President Ian Khama said that "we don't want hate speech in this country. Let him do it in his own country."[20]

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 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".[21] In 2013, fourteen members of LeGaBiBo engaged Unity Dow to sue the Botswana Government to force it to register the organisation.[22] The High Court ruled in November 2014 that LeGaBiBo must be registered.[23] 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.[24][25]

Public opinion

A 2016 Afrobarometer opinion poll found that 43% of Botswanans would welcome or would not be bothered by having a homosexual neighbour.[26]

Studies conducted by the Afrobarometer have found that young Batswana are more tolerant of gays.[8]

Summary table

Same-sex sexual activity legal No (Rarely enforced)
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
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT allowed to serve openly in the military
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

References

  1. ^ Where is it illegal to be gay?
  2. ^ Batswana warm up to gays, study shows
  3. ^ Botswana Penal Code, Chapter 08:01
  4. ^ Why More And More Countries Are Making It Illegal To Be A Lesbian Or Bi Woman
  5. ^ 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. {{cite news}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  6. ^ "City of Gaborone calls for an end to gay ban in Botswana". MambaOnline. 1 April 2016.
  7. ^ For LGBT Rights, 2018 Will Be the Year of the Courts, Human Rights Watch
  8. ^ a b Fresh bid to decriminalise homosexuality, Mmegi Online
  9. ^ LEGABIBO files evidence in sodomy case
  10. ^ "Gays recognition case postponed". Mmegi Online. 31 May 2018.
  11. ^ State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 17 October 2012 at the Wayback Machine
  12. ^ Botswana's LGBT community marches through the capital's streets to mark the International Day against Homophobia and Transphobia
  13. ^ Botswana: Activists Celebrate Botswana's Transgender Court Victory
  14. ^ Press Release: Botswana High Court Rules in Landmark Gender Identity Case
  15. ^ “Sweet closure” as Botswana finally agrees to recognise trans man, Mambaonline
  16. ^ "Botswana to recognise a transgender woman's identity for first time after historic High Court ruling". independent.co.uk. 18 December 2017.
  17. ^ "Just like Mugabi I hate gays – MP Moatlhodi", The Botswana Gazette, reported by Daniel Kenosi, 9 February 2011
  18. ^ "Sticky sodomy case has Botswana gays flustered", Sapa-AFP, reprinted on the Internet by TimesLive, 16 March 2011
  19. ^ 2011 Country Reports on Human Rights Practices: Botswana, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 19
  20. ^ Botswana to deport anti-gay US pastor Steven Anderson BBC News
  21. ^ "Botswana Gay Group Denied Registration - Again", Mambaonline.com, 23 April 2012
  22. ^ "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
  23. ^ "Botswana gay rights group wins landmark case", "BBC News", 14 November 2014
  24. ^ Hogan, Ashley (17 March 2016). "Botswana court rules in favor of LGBT rights group". JURIST.
  25. ^ Botswana's top court rejects government bid to ban gay rights group
  26. ^ Africa’s most and least homophobic countries
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