Not only in Kenya discriminatory laws are being challenged, also in Botswana the LGBT community goes to court: On Thursday, 14 March 2019, the Botswana High Court, will hear a case challenging the constitutionality of sections 164(a), 164(c) and 167 of the Botswana Penal Code. These provisions criminalize same-sex sexual conduct between consenting adults in Botswana and imposes a maximum sentence of seven years imprisonment.
Government recognizes consequences for HIV response
In Botswana, evidence suggests that criminal laws, and the accompanying stigma, discrimination and rights violations experienced by LGBT persons, including within health care facilities, marginalise
LGBT persons. As this also concerns health care facilities, LGBT people are afraid of accessing and using these services, including HIV prevention, treatment and care. This was recognised by the Botswana government itself: Its Global AIDS Response Progress Report to the Joint United Nations Programme on HIV/AIDS (UNAIDS) noted that “stigma and discrimination are major constraints to universal access and utilisation of HIV and AIDS services.” The recent Legal Environment Assessment found that criminalisation impedes access to health services by “driving vulnerable and marginalised individuals underground and away from public services.”
It started as a petition
A gay man known only as LM filed a petition last May to the court arguing the laws to criminalizing homosexuality were unconstitutional. The High Court revealed the hearing will commence on 14 March, 2019. The organization Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), supported by the Bridging the Gaps, is admitted as a friend of Court in the proceedings. ‘We are delighted that the Court has set a hearing date for this really important case,’ said Anna Mmolai-Chalmers, CEO of LEGABIBO coordinator. LEGABIBO will hopefully testify on the practical effect and social impact the Penal Code has on the daily lives and experiences of LGBT persons. Particularly, the submission illustrates how the criminalization of same-sex sexual conduct limits LGBT persons’ ability to access basic social, health and HIV related services, increases their chances to discrimination, and infringes on their basic human dignity.
The president agrees: Everybody deserves to have their rights protected!
“Botswana is a diverse society and the Constitution protects the freedoms and dignity of all persons in Botswana, regardless whether you are gay, lesbian, bisexual transgender or intersex”, says Anna Mmolai-Chalmers. “Importantly, this has been acknowledged by our very own President His Excellency Dr. Mokgweetsi Masisi during the commemoration of 16 days of activism against violence on women and children in December 2018. There, he emphasized that ‘there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected’…”
Will Botswana court set an example for the region?
“Over the past three years, the Botswana courts have shown themselves to be champions of jurisprudence which acknowledges the rights of LGBT persons and their right to equal protection before the law”, says Tashwill Esterhuizen LGBT and Sex Workers Rights Programme Lawyer, at the Southern Africa Litigation Centre (SALC). “Through their sound legal reasoning and constitutional jurisprudence, the Botswana courts have set an example for other courts in the region on the important role the courts can and should play in protecting and promoting human rights of all persons, including marginalized groups. LEGABIBO won an earlier victory in the High Court, when in 2016 it ruled the government’s refusal to register the organization was illegal. Previously in the so-called “LEGABIBO registration case”, the Court of Appeal of Botswana held that Botswana is a diverse nation and that all persons, including LGBT persons are entitled to protection of their constitutional rights and dignity.
LEGABIBO is supported by COC, Bridging the Gaps and assisted by SALC.