Botswana’s High Court has overturned a colonial-era law criminalizing consensual same-sex relations in a landmark victory for Africa’s LGBTQ movements.
The ruling comes just a month after Kenya’s high court upheld its laws criminalizing homosexuality.
Under section 164 of Botswana’s Penal Code, “carnal knowledge of any person against the order of nature,” was an offence that carried a maximum sentence of seven years imprisonment. Section 167 made “acts of gross indecency” — whether in public or private — a punishable offence, with up to two years in prison.
The case was brought to court in March by Letsweletse Motshidiemang, a 21-year-old student at the University of Botswana, who argued that society had changed and that homosexuality was more widely accepted, local media reported.
While homophobic attitudes continue to prevail in parts of the country, Botswana’s LGBTQ activists and supporters have marked some victories for the movement in recent years. The 2010 Employment Act made it illegal for employers to terminate contracts on the basis of sexual orientation, and two landmark rulings in October and December 2017 laid the foundation for trans people to more easily change their official gender on identity documents.
Following a brutal attack on a transgender woman last November, Botswana’s President Mokgweetsi Masisi signalled his support for LGBTI people, saying “there are many people in 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.”
Out of 54 African countries, at least 32 of them have enacted laws making it illegal to have gay sex, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).
In parts of Nigeria and Somalia, and in Sudan, it is punishable by death; in Mauritania, the death penalty is a possible punishment. In Tanzania, being convicted of having same-sex relations can result in life sentences.
In January, Angola’s parliament adopted a new penal code, for the first time since it gained independence from Portugal in 1975, which paved the way for lawmakers to remove the provision characterizing same-sex relationships as “vices against nature.”
Mozambique removed anti-gay laws in 2015, while São Tomé and Cape Verde have also abolished laws criminalizing gay relationships.