Botswana High Court decriminalizes homosexuality

Many thanks to Kutlwano Pearl Magashula, an LL.M. student in the Sexual and Reproductive Rights in Africa program at the University of Pretoria’s Centre of Human Rights, for her summary and analysis of the recent judgment in Letsweletse Motshidiemang v Attorney General [2019] MAHGB-000591-16 (High Court of Botswana)   Decision of June 11, 2019, in which the Court struck down sections of the Penal Code that criminalized same-sex sexual intercourse.

(Cite as:) Kutlwano Pearl Magashula, “Botswana High Court decriminalizes homosexuality: Letsweletse Motshidiemang v Attorney General, 2019” online at: “Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts” 5-page case summary and comment

We are pleased to excerpt her comments about the significance of this ruling:

The case made a watershed finding that recognized the rights of LGBT persons in Botswana. The Court found that sodomy laws do not serve any useful public purpose and in fact ‘deserve archival mummification, or better still, a museum peg, shelf or cabinet for archival display.’ The Court found that the question of private morality and decency between consenting adults should not be the concern of the law. This was an important consideration that essentially challenged the harmful precedent made in the earlier Kanane decision which allowed public morality to limit the exercise of rights of LGBT persons. This [new] decision reaffirms the argument by Cook and Ngwena that issues of sexual and reproductive health and rights should not be determined based on religion, morality or sentiment, but rather on the basis of evidence and fact.[1]

Further, the Court determined that “sex” as used in section 3 of the Botswana Constitution includes “sexual orientation.” This interpretation is in line with the findings of the Committee on Economic, Social and Cultural Rights (CESCR), which has noted that the phrase ‘other status’ in human rights instruments must be interpreted broadly to cover sexual minorities, including LGBT persons.[2] Moreover, the decision is consistent with Botswana’s obligations as a state party to the International Covenant on Civil and Political Rights (ICCPR) the Human Rights Committee of which has also stated that laws criminalizing consenting sexual conduct between adults, amount to violations of the rights to privacy and equality. [3] This generous and wide interpretation was critical for ensuring the continued protection of sexual minorities in Botswana beyond this individual case. Given that section 15 of the Constitution of Botswana does not prohibit discrimination on grounds of ‘other status,’ this constitutes a milestone in the recognition of the rights of LGBT persons in the country.

Finally, faced with arguments that it should exercise restraint and defer to Parliament to make necessary changes in the law, the Court stayed faithful to its role in the protection of human rights and stated that it had the jurisdictional authority to intervene as the ultimate defender of the Constitution.

This case is very significant for the [African] region, where issues relating to same sex relationships are treated cautiously and in a frugal manner. Indeed, in many African countries, there have been renewed attempts at criminalizing same-sex sexual conduct particularly in the wake of the HIV epidemic in the region.[5] Rather than address LGBT health needs, these criminalization attempts have fueled violence and violations of human rights of LGBT people. In response to this challenge, the African Commission on Human and Peoples’ Rights in Resolution 275 condemns all forms of violence and human rights abuses against an individual based on their real or imputed sexual orientation or gender identity.[6] This resolution has been hailed as a significant development in protecting and promoting the rights of LGBT persons in the African region. The findings of this case not only affirmed Resolution 275 but showcased a domestic response to regional efforts in combatting discrimination and violence against sexual minorities. [Read entire case comment].

[1] R Cook and C Ngwena ‘Women’s access to health care: The legal framework” (2006) 94 International Journal of Gynecology and Obstetrics 216-225. Article online.

[2] See UN Committee on Economic, Social and Cultural Rights (CESCR), General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/2. General Comment 20.

[3] Toonen v Australia, Communication No. 488/1992. Office of the United Nations High Commissioner for Human Rights. 31 March 1994
Human Rights Committee decision.

[4] The Court in this case found that gay men and women did not represent a group or class which was shown to require protection under the Constitution.

[5] See PM Eba, ‘HIV-specific legislation in sub-Saharan Africa: A comprehensive human rights analysis’ (2015) 15 African Human Rights Law Journal 224-262.

[6] ACHPR/Res.275 (LV) 2014: Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity adopted during the 55th Ordinary Session held in Luanda, Angola, from 28 April to 12 May 2014. Resolution 275 online.

Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts (2017), volume III, updated online edition, now includes 5 court rulings about “Sexual Orientation” and another 6 about “Recognition of LGBTIQ Advocacy and Groups.” Online edition with updates.

Botswana High Court decriminalizes homosexuality: Entire case comment (5 pages)

(Cite as:)  Kutlwano Pearl Magashula, “Botswana High Court decriminalizes homosexuality: Letsweletse Motshidiemang v Attorney General, 2019, online at: Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. Online here.
Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at   See Program website for our PublicationsInformation resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

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