At the first pride march in Africa in 1990, Justice Edwin Cameron said: “The criminal law is for criminals. Gays and lesbians are not criminals. Being gay or lesbian is part of being human. To criminalise gays and lesbians is to criminalise part of society.”
The idea of criminalising LGBTQIA+ tags people with these identities as social pariahs; it fuels homophobia, transphobia and queerphobia, as well as hate crimes against them. It means that they often cannot access services because they will be subjected to discrimination based on sexual orientation, gender identity and expression.
Just before midday on 11 June 2019, many LGBTQIA+ activists were glued to their cellphones, refreshing Twitter feeds, following activists in Botswana as the court read the ruling to decriminalise same-sex relations. The ruling comes just a month after Kenya’s high court upheld its laws criminalising homosexuality.
Inherited colonial laws
The Botswana High Court had to decide whether it would decriminalise same-sex relations. This conduct was criminalised under Botswana’s penal code, which was inherited from the colonial penal code of Bechuanaland. These penal codes, inspired by England’s King Henry VIII’s prohibition on oral and anal sex known as the Anti-Buggery Act of 1533, prohibits “unnatural offences” defined as “carnal knowledge against the order of nature”.
The penal code prohibited oral and anal sex for both homosexual and heterosexual people; however, it was largely used to criminalise homosexuality. A person found contravening the penal code could have spent up to five years in prison.
This penal code was first challenged in 2003. At the time, the court upheld the colonial laws and judgment was used to uphold homophobic laws in Kenya earlier this year.
The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) released a report earlier this year stating that of 54 African countries, at least 31 have enacted laws making it illegal to have gay sex.
Upholding this criminalisation marks people as criminals and has resulted in human rights violations perpetrated against the LGBTQIA+ community.
Lethabo Mailula, communications and advocacy officer at Pan Africa ILGA, notes that the classification of homosexuality as a crime and a disease further propels the non-belonging that many LGBTQIA+ people experience in African communities. She adds that criminalisation is simply erroneous; loving does not constitute committing a crime.
The Botswana ruling and ‘unAfrican’ sentiments
In a historic and unanimous decision by Judges Abednego Tafa, Michael Leburu and Jennifer Dube, the Botswana court declared the penal codes to be discriminatory as they infringed upon constitutional rights. Consequently, the court found the penal codes to be unconstitutional.
In reaching this decision, the court said “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.”
There is a belief, false but entrenched in some quarters, that homosexuality is “unAfrican”. This sentiment has fuelled state-sanctioned homophobia in Africa. Zimbabwe’s former leader Robert Mugabe said that homosexuality is contrary to African values and that homosexuals are worse than pigs or dogs. South Africa’s former leader Jacob Zuma has said it is a disgrace to the nation and to God. Former president of Kenya, Daniel Arap Moi, called homosexuality a “scourge”. Ugandan President Yoweri Museveni ordered police to round up and arrest gay people.
Nigerian writer Chibuihe Obi writes that in his country “the threats are no longer confined to social media; they have bled in our lives, into the real and the physical, into actual rooms we occupy, jobs, we hold, cafes we frequent. We are not metaphorically afraid – we are physically, literally under threat”.
In its ruling decriminalising same-sex sexual relations the Botswana High Court declared that “homosexuality is not unAfrican but it is one other way some Africans identify but have been repressed for many years”.
This pronouncement will help to dispel the notion of homosexuality being unAfrican. Moreover, it acknowledges that people are multidimensional. In this way, the court recognises that people can be, and are, queer and African and that we can no longer be discriminated against on the basis of both identities.
Law and social change
This decision is important as law can be a catalyst to create social change. Decriminalisation will immediately result in full equality before the law. It is a step that means that queer people can, in principle, live freely, access health services without discrimination, and fight for the right to get married should they desire. It also means that the government must create legal protection for queer people by ensuring that we are able to change our gender markers in identity documents and that we are protected from hate crimes. This judgment will not only give rights and dignity to sexual minorities in Botswana; it also creates impetus for other countries to continue the fight to decriminalise.
In 1998, South Africa decriminalised sodomy. The court found that prohibiting sexual intimacy between gay men violates the right to equality by unfairly discriminating on the basis of sexual orientation. The court declared that gay people are a vulnerable minority group in our society. Sodomy laws criminalise their most intimate relationships. This devalues and degrades gay men, and therefore constitutes a violation of their fundamental right to dignity. Furthermore, the laws criminalise private conduct between consenting adults that causes no harm to anyone else. This intrusion on the innermost sphere of human life violates the constitutional right to privacy.
The Botswana ruling proclaims that queer people matter in their blackness, in their queerness, in their Africanness. It allows them to shout on mountaintops, and with joy, “we are queer and we are here”.