Botswana's highest court upholds decriminalisation of gay sex, AG undertakes to implement this decision

3 December 2021 · Carmel Rickard

Botswana’s apex court has upheld a high court decision decriminalising gay sex. And the country’s attorney general has issued a special media release on the subject, saying that Botswana has an impressive post-independence record of observing human rights and the rule of law. Against this background, the government will ensure the new decision in the court of appeal’s judgment is implemented.

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Five judges of Botswana’s highest court have rejected an appeal by the country’s attorney general that challenged a high court decision decriminalising gay sex.

The landmark decision, written by the court’s president, Ian Kirby, and delivered the day before he officially retired from the court, had the unanimous support of the four colleagues who heard the case with him.

The court first contextualised the decision, explaining that it was the latest in a series that dealt with the rights of Botswana’s gay community.

Expert evidence

Another significant feature, raised early in the decision, was a comment on the role of an organisation that had been admitted as a friend of the court. The high court had had to decide whether to admit the Gays, Lesbians and Bisexuals of Botswana (LEGABIBO) on the basis that it would present expert evidence, otherwise unavailable to the court, as well as international authorities which were also otherwise unlikely to be available.

The organisation was duly admitted as a friend of the court, but the appeal judges said it would have been more appropriate for the material to have been made available to the court through a witness called by the applicant. Alternatively, LEGABIBO could have been joined as a ‘co-applicant’. This was because the role of a friend of the court was to act as a ‘disinterested party’, presenting new and useful arguments in the public interest for the assistance of the court, rather than producing exhibits for the benefit of one party to a dispute.

Because LEGABIBO had been admitted as a friend of the court, it was allowed to present argument on an issue not raised in the main application before the high court. Summarising the material put up by the organisation, the appeal court said it concluded that ‘decriminalisation of homosexual behaviour’ was the first step necessary towards the ultimate acceptance of gays as ‘full and equal members of society’.

‘Gender neutral’

In response, the attorney general merely denied that the sections of the law criminalising anal sex stigmatised gay men ‘or had the effect of discriminating against them’, because the law applied equally to men and women.

LEGABIBO acknowledged that the language of the disputed sections was ‘gender neutral’. But they clearly ‘had a disproportionate and more negative effect on members of the LGBTQ community’ and thus were discriminatory in their effect.

The appeal judges described the high court decision as ‘long, comprehensive and searching’. It had obviously resulted from ‘painstaking research and introspection’, something that was to be ‘commended’.

‘Exhaustive examination’

Its ‘exhaustive examination’ of a large number of foreign precedents, articles and treaties could well be a useful reference point for future cases but, said Justice Kirby, it was not necessary to cover all this ground in the appeal decision.

Apart from the decision itself, agreeing with the high court that the relevant sections had to be removed, the appeal judges made several other significant points.

One of these was to consider the role of the judiciary in protecting vulnerable groups. The court said it was most unlikely that the popular majority, represented by MPs, would have ‘any inclination’ to legislate on the protection of vulnerable individuals or minorities.

Oath

That task had been given by the framers of the constitution to the judiciary, and it was a task that judges swore a judicial oath to carry out.

The framers ‘deliberately crafted two pathways to legislative reform,’ said the court. One was the pathway given to elected MPs who make laws for Botswana. The other was given to courts via the powers in the constitution to ensure the protection and enforcement of the fundamental rights of individuals and minority groups.

‘In the performance of that function they are empowered … to strike down or modify laws which do not pass constitutional muster, to the extent that they breach, or have the effect of breaching, the fundamental rights of individuals or vulnerable groups’.

Summation

In its summation at the close of the judgment, the court said the disputed sections of the penal code had been made unconstitutional by the march of time and the change of circumstances.

‘They serve only to stigmatise gay men unnecessarily, which has a harmful effect on them …. Those sections have outlived their usefulness, and serve only to incentivise law enforcement agents and others to become key-hole peepers and intruders into the private space of citizens. That … is neither in the public interest, nor in the nature of Batswana.’

Attorney general

In a surprise statement issued the day after the judgment was handed down, the attorney general, Abraham Keetshabe, said the court of appeal had delivered ‘a major decision affecting members of the gay community’.

He acknowledged that it was he who had noted an appeal in the matter, but that the appeal judges had now decided that there could be ‘no discernable public interest purpose’ served by keeping the law on the statute books.

He said that the judiciary was an independent arm of state with constitutional responsibility for interpreting the law. In this case, it had ‘dutifully carried out its mandate under the constitution’ and as a result the court’s decision to strike down the disputed sections was to be respected and implemented.

Impressive record

‘It is only through compliance with court decisions that democracy and the rule of law … can continue to flourish.’ Keetshabe added that Botswana was a constitutional democracy, based on the rule of law and that, since independence, the country had had ‘an impressive record’ for observing human rights. The courts had played a leading role in ensuring this continued.

Given this background, he said, he wanted to inform members of the public ‘and the international community’ that the government of Botswana ‘will ensure that this decision is implemented.’

Carmel Rickard

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