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“Botswana”, a Fourth African Country to Decriminalize Gay Sex, Boosts Hope for Equal Rights

Addressing the court Tuesday, Judge Michael Leburu said Botswana needed to embrace diversity and promote tolerance

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An activist holds up a rainbow flag to celebrate inside Botswana High Court in Gaborone on June 11, 2019. Botswana's Court ruled on June 11 in favour of decriminalising homosexuality, handing down a landmark verdict greeted with joy by gay rights… An activist holds up a rainbow flag to celebrate inside Botswana High Court in Gaborone on June 11, 2019. Botswana's Court ruled on June 11 in favour of decriminalising homosexuality, handing down a landmark verdict greeted with joy by gay rights. VOA

Botswana’s High Court on Tuesday overturned colonial-era laws that made gay sex illegal. Botswana is the fourth African country to decriminalize homosexual relations, and the first to do so through the courts.

Addressing the court Tuesday, Judge Michael Leburu said Botswana needed to embrace diversity and promote tolerance. Letsweletse Motshidiemang, a 24-year-old university student, had challenged two of the southern African country’s colonial-era laws. The laws, though rarely enforced, made gay sex punishable by up to seven years in prison.

Motshidiemang’s lawyer, Tshiamo Rantao, hailed the judgment. “There shall be no discrimination based on sexual orientation from now henceforth,” he said.  “The parliament had already done so when it prohibited discrimination in the employment arena, on the basis of sexual orientation. It is a progressive decision; I am sure it will be celebrated all over the world.”

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Activists leave Botswana High Court in Gaborone, June 11, 2019. VOA

Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) spokesperson Cain Youngman said the ruling was a win for equal rights. “It basically puts us at par with the rest of the community. It was not about asking for any special rights, we were asking to be equal to other Botswana, period,” Youngman said. The case removed Section 164 and 165 of Botswana’s penal code, which was similar to anti-gay laws in other former British colonies.

Around Africa

Kenya’s high court in May upheld its colonial-era laws against gay sex, dealing a blow to activists’ hopes it would lead the expansion of gay rights in Africa. Botswana gay rights activist Katlego Kolanyane-Kesupile, who underwent gender transformation, said Tuesday’s ruling was a victory for everyone.

“I am really happy that Botswana added to its record of upholding human rights provision for each and every citizen,” Kolanyane-Kesupile said.

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Pride Month kicked off on June 1 and honours the LGBTQ community while commemorating New York’s Stonewall riots in June 1969. Pixabay

“It is not only a victory for LGBT people. We are here to say every single member deserves to be protected unto the laws of the country.”

ALSO READ: Marvel Universe to Introduce a LGBTQ Superhero Very Soon

Homosexuality is a crime in the majority of African nations, and discrimination is common. Botswana joins Angola, Mozambique, and the Seychelles in removing anti-gay laws and is the first to do so through the court system. The others removed the discriminatory laws through parliament or constitutional reform.

While the Botswana high court’s ruling is widely seen as a victory for gay rights, South Africa remains the only country on the continent with explicit legal rights based on sexual orientation. (VOA)

Next Story

Kenya Upholds Laws that Criminalize Same-Sex Relations

In arguments read in court, the three judges stated there was not enough evidence of discrimination against members of the LGBTQ community

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An LGBT activist delivers a statement after a ruling by Kenya's high court to uphold a law banning gay sex, at the Milimani high Court in Nairobi, Kenya, May 24, 2019. VOA

Kenya’s high court on Friday upheld laws that criminalize gay sex. The much-anticipated ruling Friday was decided by a three-judge bench on Kenya’s High court in Nairobi.

The laws, sections 162(a) and (c) and 165 of Kenya’s Penal Code, criminalize consensual sexual conduct between two adults of the same sex, an act that as of Friday’s ruling remains punishable by up to 14 years in prison.

Justices Roselyn Aburili, Chacha Mwita and John Mativo issued the ruling.

In arguments read in court, the three judges stated there was not enough evidence of discrimination against members of the LGBTQ community.

The judges also argued that decriminalization would open the door for same-sex marriage and said there was no scientific evidence that pointed to LGBTQ persons being born as they are.

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LGBT activists react after a ruling by Kenya’s high court to uphold a law banning gay sex, outside the Milimani high Court in Nairobi, Kenya, May 24, 2019. VOA

Justice Aburili commented for the court panel. “Decriminalizing the impugned provisions would indirectly open the door for unions among persons of the same sex. If this were to be allowed, it would be in direct conflict with article 45 sub article 2 of the constitution. We take this view fully aware of numerous decisions from different foreign jurisdictions, which we have referred to that have decriminalized provisions similar to ours, however persuasive this decisions may be, they are not binding on this court,” Aburili said.

Friday’s ruling is a result of a petition that dates from 2015, when the National Gay and Lesbian Human Rights Commission (NGLHRC), Gay and Lesbian Coalition of Kenya (GALCK), and the Nyanza Rift Valley and Western Kenya Network (NYARWEK), all LGBT rights organizations, filed petitions with Kenya’s high court asking it to declare Sections 162 (a) and (c) and 165 unconstitutional.

Court hearings began in February 2018. In a series of proceedings through 2018, the petitioners argued the laws, as stipulated in the penal codes, violated the right to privacy, freedom of expression, the right to health, human dignity and the right to freedom from non-discrimination.

The petitioners behind the historic case wanted the high court to declare unconstitutional the sections of the penal code that discriminated against members of the LGBTQ community. Eric Gitari was one of the petitioners who was present during the ruling.

“It sends a very chilling message, not just to LGBT people in Kenya but LGBT people across the African continent that there is preference, as you heard the judges say, certain cultures, which is the heterosexual culture and protection of the family. When judges have to weigh the protection of human rights of LGBT persons, they will give preference to majoritarian views and majoritarian interest of protecting families — that’s what we have been told and so we will remain criminals,” Gitari said. After Friday’s ruling, members of Kenya’s LGBT community were clearly distraught.

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Anti-gay rights protesters hold placards after a ruling by Kenya’s high court to upheld a law banning gay sex, outside the Milimani high Court in Nairobi, Kenya, May 24, 2019. VOA

Outside the courts, members of various Christian churches congregated, singing songs of jubilation.

One of them is Pastor Katy Kageni of the Sozo Church.

“So it’s not a sin worse than the other sin, but the problem is what it does to the family,” Kageni said. “Our fight is for the family unit. I am a mother of four, I came to this court, I told God, ‘don’t let us get into a position where I have to explain to my children why a man is holding a man.’ If he does it in the bedroom, that’s up to them, and between them and God — but not in public.

For the LGBT community, decriminalization of gay sex would provide guaranteed freedoms that they once only dreamed of, Gitari said.

He said because of today’s ruling, many of Kenya’s LGBT community would remain in the closet, and some will be too ashamed to access basic services, like health care.

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Countries such as South Africa, Angola, Mozambique, Sao Tome, and Principe and Cape Verde have struck down anti-homosexuality laws from their constitutions through court rulings or changes in their laws.

Twenty-eight of 49 countries in sub-Saharan Africa continue to uphold laws penalizing same-sex relationships, Kenya included. (VOA)