Botswana court okays same-sex relations after anonymous petition

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BOTSWANA became the latest country to decriminalise gay sex on Tuesday when the High Court rejected as unconstitutional sections of the penal code that punish same-sex relations with up to seven years in prison.

Jubilant activists in the packed courtroom cheered the unanimous decision in the southern African nation. It came less than a month after Kenya’s High Court had upheld similar sections of its own penal code in another closely watched case.

More than two dozen countries in sub-Saharan Africa have laws criminalising gay sex. Earlier this year, the southern African nation of Angola also decriminalised same-sex activity and banned discrimination based on sexual orientation.

Those arguing against the laws criminalising gay sex say they leave people in the LGBT community vulnerable to discrimination and abuse while making it difficult to access basic health and other services.

The Botswana-based non-governmental group LEGABIBO, which supported the anonymous petitioner in the case challenging the sections of the penal code, has said such laws ‘infringe on basic human dignity.’

Tuesday’s ruling led to rejoicing by rights groups that had expressed frustration with the Kenyan decision last month.

Botswana’s High Court said in its ruling that penalising people for who they are is disrespectful, and that the law should not deal with private acts between consenting adults.

The right to privacy includes sexual orientation, which is innate and not a fashion statement, the judges said.

The ruling also cited the recent decriminalisation in India and elsewhere. It also pointed out that all three arms of Botswana’s government have expressed the need to protect the rights of the gay community.

Ahead of the ruling, LEGABIBO shared a comment attributed to President Mokgweetsi Masisi: ‘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.’

In its reaction, the Joint United Nations Programme on HIV and AIDS (UNAIDS)  applauded what it described as a  ‘landmark decision’. ‘This is a historic ruling for lesbian, gay, bisexual and transgender (LGBT) people in Botswana,’ said Gunilla Carlsson, UNAIDS Executive Director.  ‘It restores privacy, respect and dignity to the country’s LGBT people, and it is a day to celebrate pride, compassion and love. I commend the activists, civil society organisations and community groups that have campaigned so hard for this moment, she said.

UNAIDS has been working with LGBT groups, civil society organisations and other partners to promote a more enabling legal environment in the country. In recent years, the courts in Botswana have taken a lead in protecting and promoting the human rights of marginalised groups.

‘Criminalisation of consensual same-sex sexual relations is a violation of human rights and legitimises stigma, discrimination and violence against LGBT people. Criminalisation stops people from accessing and using HIV prevention, testing and treatment services and increases their risk of acquiring HIV,’ UNAIDS said in a statement.

Globally, the risk of acquiring HIV is 28 times higher among gay men and other men who have sex with men than among the general population and 13 times higher for transgender women. Prohibitive legal and policy environments and a lack of tailored services for key populations increase their vulnerability to HIV. UNAIDS urges countries to ensure the full respect of the human rights of all people, regardless of their sexual orientation, through repealing laws that prohibit sex between consenting adults in private, enforcing laws to protect people from violence and discrimination, addressing homophobia and transphobia and ensuring that crucial health services are made available.

‘I hope that this decision reflects a move towards a more humane, compassionate and rights-based approach towards same-sex relations worldwide. It should encourage other countries to repeal unjust laws that criminalise same-sex sexual relations and block people’s access to essential services, including to health care,’ said Carlsson.

 

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