Rainbow rising in Botswana.
Botswana’s Court of Appeals upheld that criminalizing same-sex relations is discriminatory.
On 11 June 2019, a full bench of the High Court of Botswana ruled unanimously to strike down section 164(a) and (c), and section 167 of the Penal Code which criminalized same-sex relations, or “carnal knowledge against the order of nature”. Judges ruled that the provisions are discriminatory, noting that “a democratic society is one that embraces tolerance, diversity and open-mindedness” and that “societal inclusion is central to ending poverty and fostering shared prosperity.”
The State appealed the court’s decision.
The Court of Appeals dismissed the challenge.
The judgment highlights that “there can be no discernible public interest in the continued existence of [these] sections of the Penal Code. They have been rendered unconstitutional by the march of time and change of circumstances.”
The judgment also noted that these sections “serve only to stigmatize” and enable law enforcement to intrude into the private lives of citizens, which “is neither in the public interest, nor in the nature of Botswana” (paragraph 115 of the judgment).
To date, 67 countries continue to explicitly criminalize same-sex relations, with several others using laws on vagrancy, prostitution, morality and others to criminalize same-sex relations.
