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Bostwana’s High Court Decriminalises Homosexuality
Botswana’s High Court packed with activists before the announcement of the verdict in #Repeal164 to decriminalise homosexuality in Botswana.
Botswana has decriminalised homosexuality, in a ruling delivered at the Southern African High Court in its capital city Gaborone.
The court ruled that Sections 164 and 165 of Botswana’s Penal Code which outlawed ‘carnal knowledge of any person against the order of nature’ was unconstitutional.
“We have determined that it is not the business of the law to regulate private consensual sexual encounters” between adults, Judge Michael Leburu said, according to journalist Ryan Brown on Twitter.
The High Court heard the case after a gay man identified only as LM, filed a petition to repeal Section 164.
Judge Leburu also ordered the state to pay LM’s legal cost.
See how the judgement was delivered below:
This decision is taking a deep dive into history. Judge Michael Leburu is recounting the story of Sodom and Gomorrah as evidence of the deep roots of the criminalization of homosexuality. #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Judge Michael Leburu: anti-sodomy laws are a “British import” and were developed “without consultation of local peoples” #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu is responding to the applicant’s case that a “carnal knowledge” law is too vague to be constitutional. What exactly is being criminalized? “A vague law is a violation of due process”
— Ryan Brown (@ryanlenorabrown) June 11, 2019
He says this law is not vague because previous court decisions have clearly defined carnal knowledge as anal sex #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
The last thing he said before the recess was that the Kanane decision of 2003, which upheld the criminalization of homosexuality, “left open a window” that decriminalization could be allowed when the time was right #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Ok team, we are back. Leburu is now discussing the right to privacy #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
“The right to privacy is not absolute.” There are limitations when person’s privacy clashes with public interest, safety, morality, or health. #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
The right to privacy is enshrined by the UN, the AU, and many international human rights charters. Can only be limited with good reason #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
“The right to privacy is not simply the right to be left alone. It extends to the right to make fundamental private choices including those with regards to sexual conduct” #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu says “it is not the business of the law to regulate the private behavior” of two consenting adults. The applicant “has a right to private intimacy” as long as it doesn’t harm anyone else. #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
The state says the law isn’t discriminatory because no one is allowed to have anal sex, not just gay people #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: “Sexual orientation is not a fashion statement. It’s an important attribute of one’s personality. All people are entitled to autonomy over their sexual expression.” #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu is citing a lot of recent decriminalization decisions in his ruling, among them Lawrence v Texas and the recent case of decriminalization in India. No mention of the Kenya case that went the other way #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: “human dignity is harmed when minority groups are marginalized” #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
People are leaning forward in their seats, nervous and excited to hear where these arguments for the rights to privacy and dignity are leading.
— Ryan Brown (@ryanlenorabrown) June 11, 2019
“Sections 164 and 165, are, in our view, discriminatory” #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
“Any discrimination against a member of society is discrimination against all.” #Repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: “in our view sections 164 and 165 impair the applicant’s right to dignity, privacy, and liberty, and lastly that the prohibitions are discriminatory in effect.” #repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: it would be “suspect” for a court to issue a decision based on speculation of what the public’s morals are #Repeal164 #decrimbotswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: public opinion in cases like this is relevant but not decisive. This is about fundamental rights more than the public’s view #Repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: it is “not in the public interest” to criminalize same sex sexual conduct. “What compelling public interest is there necessitating such a law?” There is no victim. #Repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: the argument that it’s in the public interest to criminalize homosexuality “does not pass constitutional muster” #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: “a democratic nation is one that embraces tolerance, diversity, and open mindedness… societal inclusion is central to ending poverty and fostering shared prosperity.” #Repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
The idea that sexual intercourse is only for procreation “is no longer sustainable” (the room giggles appreciatively) #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: the constitution is “a dynamic, living document” subject to interpretation as society changes #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: the state cannot be sheriff in people’s bedrooms. (Inching closer and closer to that moment when the decision to #repeal164 is official)
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Leburu: “we have determined that it is not the business of the law to regulate private consensual sexual encounters” between adults #Repeal164 #Botswana
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Woman next to me: “is it ok to scream yet?” Decriminalization is official, people. #164isrepealed
— Ryan Brown (@ryanlenorabrown) June 11, 2019
The state is ordered to pay the applicant’s court costs #repeal164
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Scenes of joy as decriminalization Of homosexuality made official in Botswana #repeal164 pic.twitter.com/pBch7o6kdh
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Outside the courtroom now pic.twitter.com/MZ7xDo3xe4
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Reverend Thabo Mampane of the Lutheran Church on why he supports #repeal164 “the church must be the voice of the voiceless” pic.twitter.com/0BUwROlvkk
— Ryan Brown (@ryanlenorabrown) June 11, 2019
Photo Credit: @ryanlenorabrown
