by Milagros Chirinos •
Botswana was one of 33 African countries that criminalized consensual same-sex relations.
Today, HRC celebrates a monumental decision by the High Court of Botswana to overturn Sections 164(a), 164(c) and 167 of the country’s Penal Code -- an archaic law dating back to 1885 that criminalized consensual same-sex relations between adults.
“Today’s historic decision by Botswana’s High Court puts an end to a law that discriminated against and violated the most fundamental human rights of an entire group of people,” said HRC Director of Global Partnerships Jean Freedberg. “We congratulate Botswana’s LGBTQ advocates and their legal teams who fought vigorously to achieve this victory and honor the courage of the plaintiff in this case whose voice has given hope to the LGBTQ community in Botswana and so many other places across Africa and the world.
“This victory is a historic landmark for LGBTQ people in Botswana and a positive step toward the inclusion of our community across Africa and the world,” said Tashwill Esterhuizen, a 2017 HRC Global Innovator who led the Southern Africa Litigation Centre’s efforts to litigate this case.
This challenge began in May of 2018 when a gay man, known only as LM, filed a case against Botswana’s Attorney General challenging the constitutionality of Sections 164(a), 164(c) and 167 of the Penal Code that violated constitutional rights, including the right to equal protection of the law and freedom from discrimination; the right to liberty; and the right not to be subjected to inhumane or degrading treatment under the Botswana Constitution of 1966.
This decision follows two separate landmark cases in September and December of 2017, in which Botswana’s courts ordered the government to recognize the gender identity of two individuals. In addition, in 2014 the country’s leading LGBTQ group, LEGABIBO, won a groundbreaking case that allowed it to register as an NGO.
In recent years, advocates in Angola and other African countries have been successful in their efforts to overturn anti-LGBTQ criminalization laws, including victories in Mozambique, São Tomé and Príncipe, Cape Verde and the Seychelles.
This decision could significantly influence other court cases in the region and boost ongoing efforts to establish LGBTQ-inclusive laws across Africa.
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