Botswana Perspective on Same-Sex Marriage
In recent years, the LGBT community has become more visible and accepted among Botswana population. The Botswana High Court has been at the forefront of LGBT rights in the country. In 2016, it ordered the Government to register Botswana main LGBT organisation, LEGABIBO, and in 2017 it ruled that transgender people have a constitutional right to change their legal gender.
In 2019, it struck down colonial era laws banning homosexuality and ruled that sex as defined in section 3 of the Botswana constitution should be generously and purposively interpreted to include sexual orientation. 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 protection for LGBT people.
Same sex sexual act became legal on 11 June 2019. Previously, sodomy, whether heterosexual or homosexual, was criminalised, punishable by up to seven years imprisonment. The law criminalising such sexual activity applied to both men and women. Initially, its application was limited to men, however, a Botswana court found this discriminatory and that the law should apply to women as well. Although same sex sexual acts remained illegal until June 2019, their prosecution was rare according to a 2004 publication.
On 30 March 2016, the Gaborone City Council unanimously approved a motion calling for the repeal of Botswana criminalisation of same sex sexual acts. Letsweletse Motshidiemang, 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 student fundamental right to liberty, freedom of privacy as well as his right to use his body as he sees fit.
On 11 June, the High Court decriminalised same sex sexual activity by unanimously declaring that section 164 of Botswana penal code was unconstitutional. The judgement was welcomed by the ruling Botswana Democratic Party. Judge Michael Leburu further said that such laws deserve a place in the meseum or archives and not in the world.
Section 164 of the Penal Code punishes carnal knowledge of a person against the order of nature with seven years’ imprisonment. The Botswana anti-homosexuality legislation punishes both male and female homosexual conduct. Section 165 punishes attempted homosexual conduct with five years’ imprisonment. Section 167 criminalises both private and public consensual adult homosexual conduct.
The Botswana judiciary is unwilling to risk a confrontation with the society which remains strongly anti-LGBT. This fact came to the fore in Utjiwa Kanane v The State. Kanane was reported to have allowed Graham Norrie to perform homosexual acts on him on 26 December 1994. Kanane submitted before the trial court that anti-sodomy provisions under which he was charged violated section 3 of the Constitution of Botswana which guarantees right to privacy, conscience, expression and association. Kanane submitted that the impugned legislation was to the extent that it violated section 3 unconstitutional.
The trial judge Mwaikasu was of the opinion that the anti-homosexuality legislation did not violate the Constitution of Botswana. Falling back on the public morality argument of Devlin, the trial judge asserted that the anti-homosexuality legislation mirrored the prevailing moral values of the society. The judge noted that morality is the foundation of the criminal law; what was acceptable in the West might be anathema in Botswana.
Justice Tebbutt of the Court of Appeal, reading the lead judgment, was of the opinion that the trial judge overlooked the status of the anti-homosexuality legislation before its 1998 amendment and carried on as if the appellant had been charged under the post-amendment legislation. He found that section 167 of the Penal Code pre-amendment, under which the appellant was charged, was discriminatory while section 164(c) pre-amendment was not discriminatory.
Consequently, the appeal succeeded in part. The Court of Appeal dealt with the case in a wholly technical way, without relating to the real-world experience of homosexuals. The judgment made no remark on the necessity of tolerance towards a group that qualifies to be called sexual minorities.
Similar to the Eric Gitare case, the quest for legal recognition in terms of registration as an NGO presents itself in the case of LEGABIBO v Attorney General of Botswana. The applicants approached the High Court of Botswana sitting at Garbone through a notice of motion seeking an order declaring the action of the Minister of Labour and Home Affairs refusing the registration of LEGABIBO in contravention of section 3 of the Constitution of the Republic of Botswana.
According to the applicants, the action of the Minister of Labour and Home Affairs denied them the right to equal protection of the law contrary to section 3, the right of freedom of expression contrary to section 12, the right to freedom of association and assembly contrary to section 11, and the right to freedom from discrimination contrary to section 15 of the Botswana Constitution. The circumstances surrounding this suit show that on 16 February 2012, the applicants filed an application for registration of their organisation, the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO).
The Director of Civil and National Registration rejected the application for registration on the basis that the Constitution of Botswana does not recognise homosexuals and that their application would violate section 7(2) (a) of the Societies Act. On 12 April 2012, the applicants appealed to the Minister of Labour and Home Affairs, who further upheld the decision of the Director of Civil and National Registration. Aggrieved, the applicants filed this suit on the 25 March 2014 seeking an order to declare the actions of the director unconstitutional.
Reacting to the claim of the Director of Civil and National Registration, that the objective of LEGABIBO offends section 7(2)(a) of the Societies Act, the Court held that the objectives of LEGABIBO was ‘quite harmless and in fact promote good values’. The Court specifically pointed out article 4(5) of the Constitution of LEGABIBO which states that one of the objectives of the organisation is to carry out political lobbying for equal rights and decriminalisation of same-sex relationships.
On this objective, which the authorities probably capitalised on to refuse LEGABIBO registration, the Court held that ‘there is nothing sinister or unlawful about the process of lobbying or advocacy’. The Court pointed out that it is a democratic norm for groups to lobby the government of their various countries towards achieving legislative reforms.
The High Court also examined the other ground for refusal to register LEGABIBO which is that the Botswana Constitution does not recognise homosexuals. The Court promptly faulted this ground and asserted that no provision in the Constitution expressly denied homosexuals or recognised them. The Court succinctly put this reality in the following statement:
It may be that engaging in homosexual activity is outlawed. But if I were to use an example of one born left handed, if it was a crime to write with a left hand, such a person would not be punished for being left handed but for writing with a left hand just as a gay person would not be punished for being gay rather for engaging in same sex relationship.
The Court stated that based on all the objectives of LEGABIBO enunciated in its Constitution, there was nothing unlawful or incompatible with peace, welfare or good order in Botswana. Everyone has the right to lobby for change in laws to their own advantage. It was left to the legislators to reject such overtures where they think a change in legislation is inimical to the society. The Court concluded that in a democratic society freedom of association, assembly and expression are fundamental values protected by the Constitution and can only be limited in a reasonably justifiable fashion permitted by law. The Court also held that the objects of LEGABIBO are all ex facie lawful and that it is not a crime to be a homosexual.
The refusal to register LEGABIBO, according to the Court, was not reasonably justified under the Constitution of Botswana or section 7(2)(a) of the Societies Act, and the refusal is in violation of the applicants’ right to freedom of expression, freedom of association, and freedom of assembly, as enshrined under sections 3, 12 and 13 respectively of the Constitution of Botswana. Judge Rannaowane declared the actions of the respondent unconstitutional. He set aside the decisions of the Minister of Labour and Home Affairs and ordered that the applicants (LEGABIBO) are entitled to assemble and associate under the name and style of LEGABIBO.
 ‘Botswana High Court Postpones ruling on decriminalizing gay sex’ Gay Star News, 14 March 2019
 Marusic 2/22/2017, Kristina ‘Why more and more countries are making it illegal to be a lesbian or bi-woman’ LOGO News
 Powys Maurice Emma, ‘Botswana LGBT activist present arguments to decriminalize gay sex’ Pink News, 11 June 2019
 Criminal Appeal No. 9/03
 Kanane (n 240 above). Kanane’s alleged offence was committed in 1994. The sections of the Penal Code dealing with homosexuality had not been amended at that time to include female homosexuality. Kanane was therefore right in contending that sections 164(c) and 167 discriminated against him as a male. Section 164(c) before amendment read: “Any person who … permits a male 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”. The 1998 amendment of the Penal Code replaced the word ‘male’ with ‘any other’. Section 167 before amendment read: “Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit an act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of an offence”. The 1998 amendment removed ‘male’ from the legislation and replaced it with ‘or her’ immediately after ‘him’. Immediately after ‘himself’ the words ‘or herself’ is used to indicate that lesbians are not exempted
 MAHGIB 000175-13
 Section 7(2)(4) of the Societies Act upon which the director based his rejection to register LEGABIBO states that: ‘The Registrar shall refuse to register and shall not exempt from registration a local society where it appears to him that any of the objects of the society is or is likely to be used for any unlawful purpose or any purpose prejudicial to, or incompatible with peace, welfare or good order in Botswana’.
 Ibid para 20
 Ibid para 61