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Botswana’s High Court Just Struck Down Colonial-Era Laws That Made Gay Sex Illegal

The decision comes weeks after Kenya upheld its own laws against gay sex.

Posted on June 11, 2019, at 8:21 a.m. ET

Scenes of joy as decriminalization Of homosexuality made official in Botswana #repeal164

NAIROBI — Botswana’s High Court on Tuesday declared that colonial-era laws criminalizing gay sex were unconstitutional, in a huge boost for LGBT rights in Africa.

The unanimous decision, handed down by Justice Michael Leburu in the capital of Gaborone, comes less than three weeks after the Kenyan High Court decided to uphold similar laws that prohibit gay sex.

Leburu said that an individual’s 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.”

“Sexual orientation is not a fashion statement,” he added. “It’s an important attribute of one’s personality. All people are entitled to autonomy over their sexual expression.”

In recent months, Botswana’s government has shown that it was beginning to pave the way for increased constitutional recognition and protection of the LGBT community. In November, newly elected President Mokgweetsi Masisi spoke out in support of Botswana’s LGBT community.

“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 [against],” Masisi said. “Just like other citizens, they deserve to have their rights protected.”

LGBT activists hope that today’s decision will mark the beginning of a shift in attitude toward people who have faced discrimination, violence, and isolation as a result of their sexuality.

Caine Young, a longtime activist at LGBT advocacy group Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO), told BuzzFeed News in March that members of the LGBT community living in Botswana suffer from a range of ill treatment from other members of society.

“There are a range of issues, like blackmail and extortion,” Young said on the phone from Gaborone. “If somebody finds out that you are gay, someone can come up to you and say, ‘If you don’t give me your phone or give me money, I’m going to tell your employer that you’re gay, and you will get fired.’”

It couldnot have been a better day. What a day... We are all basking in the glory of human rights for all.@legabiboadvo @leshielovesong @ratanangMosweu

Young added that even though it was illegal to discriminate against an employee based on their sexual orientation even before today’s ruling, many members of the community aren’t aware of such laws, and give in to the threats as a result.

“There’s also a fear of being sent away or kicked out of the house from family or landlords if they were to find out that someone is gay,” he said. “This is where you find yourself. You get home and find out your room has been locked, lock changed, given a few hours to get your stuff and leave. If you don’t know the laws, you can get kicked out.”

But as Botswana joins Angola and 20 other African countries doing away with colonial-era laws that criminalize gay sex, advocates leading the fight are confident that the trend will continue.

Baz Ratner / Reuters

An LGBT activist at the High Court ruling in Kenya last month.

Tashwill Esterhuizen, an attorney for the LGBTI and Sex Work Program at the Southern Africa Litigation Center — who represented LEGABIBO in the court case — told BuzzFeed News in a statement that “the Botswana courts continue to set an example for other courts in the region on the important role that the judiciary can and should play in protecting and promoting human rights for all persons."

“We hope that this case will set an important precedent for other courts in the region and that they too will follow suit,” he added.


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