{"id":133252,"date":"2019-03-18T18:47:41","date_gmt":"2019-03-18T16:47:41","guid":{"rendered":"https:\/\/www.myza.co.za\/botswana-joins-list-of-african-countries-reviewing-gay-rights-the-conversation\/"},"modified":"2019-03-18T18:47:41","modified_gmt":"2019-03-18T16:47:41","slug":"botswana-joins-list-of-african-countries-reviewing-gay-rights-the-conversation","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/botswana-joins-list-of-african-countries-reviewing-gay-rights-the-conversation\/","title":{"rendered":"Botswana joins list of African countries reviewing gay rights | The Conversation"},"content":{"rendered":"

Botswana joins list of African countries reviewing gay rights<\/a>: <\/p>\n

The High Court in Botswana is deliberating on a motion to legalise same-sex relationships<\/span> Shutterstock<\/span><\/span><\/figcaption><\/figure>\n

Botswana\u2019s High Court is considering a challenge to the provisions of the penal code criminalising consensual same-sex relations in the country. It will hand down its judgment in June. The challenge raises similar legal issues as the one pending at the Kenya High Court, which is due for a decision in May.<\/p>\n

Same sex relations are outlawed under Botswana\u2019s penal code. These prohibitive sections were inherited from the colonial penal code of Bechuanaland, as Botswana was then known. <\/p>\n

Section 164 prohibits \u201cunnatural offences\u201d defined as \u201ccarnal knowledge against the order of nature\u201d. The section prohibits oral and anal sex for both homosexual and heterosexual couples. Those found to have broken this law face up to seven years in prison. Attempting to engage in unnatural offences is also illegal and offenders can spend up to five years in prison under Section 165.<\/p>\n

Botswana\u2019s laws are similar to India\u2019s penal code, which was famously found unconstitutional by India\u2019s Supreme Court in September 2018. The \u201cunnatural offences\u201d provision was included in India\u2019s colonial penal code by Englishman Thomas Babington Macaulay and the Indian Law Commission in the 1830s. <\/p>\n

Sections of India and Botswana\u2019s laws were inspired by England\u2019s King Henry VIII\u2019s prohibition on oral and anal sex, also known as the Anti-Buggery Act of 1533.<\/p>\n

Botswana\u2019s anti-sodomy laws have been challenged before. In 2003, the Botswana Court of Appeal held that the penal code\u2019s anti-sodomy provisions were constitutional. Botswana\u2019s constitution dates back to its independence in 1960. It is therefore less modern than Kenya\u2019s 2010 constitution. Under Kenya\u2019s constitution, judges are empowered to look to international and foreign law to resolve domestic constitutional disputes. <\/p>\n

The origins<\/h2>\n

More than 70 countries around the world still criminalise sexual activity between two men. About half of them are former British colonies. This is because Britain enforced Victorian sexual norms on its territories through penal code provisions that still exist in many places.<\/p>\n

Since 1981 when the European Court of Human Rights struck down the UK\u2019s anti-sodomy law, colonial penal codes have come under increasing scrutiny. Given their similarities, human rights activists have an opportunity to use international law and the laws of other jurisdictions as a tool to convince local courts that anti-sodomy laws are outdated. <\/p>\n

India is the latest in a string of former British colonies that have removed their anti-gay laws. It follows countries as diverse as Cyprus, Fiji, Belize, Nepal, and Australia. A favourable decision in Botswana would reinforce this trend.<\/p>\n

Many former British colonies in sub-Saharan Africa inherited penal codes like Botswana\u2019s. In most former colonies, these include separate prohibitions on \u201ccarnal knowledge\u201d (oral and anal sex) and on \u201cgross indecency\u201d (other sexual activities). Great Britain itself criminalised \u201cgross indecency\u201d \u2013 a euphemism for all forms of same-sex intimacy \u2013 in 1885. This was drafted into penal codes in Canada, South Pacific colonies, Northern Nigeria, British East Africa, and Botswana. <\/p>\n

The situation in Botswana is most comparable to the situation in Kenya where the high court is expected to rule on the country\u2019s anti-gay law in May. <\/p>\n

But in Kenya, the penal code prohibition on \u201cgross indecency\u201d only applies to sex between two men. This used to be the case in Botswana until 1998 when the country\u2019s legislature expanded the provisions to apply to women as well. <\/p>\n

Kenya has also ratified international human rights treaties that prohibit anti-sodomy laws. By contrast, Botswana\u2019s constitution is the oldest surviving constitution on the African continent. Its constitution does not require judges to look to treaties or other sources of international law to aid in their decision making process and international law is not binding on their courts.<\/p>\n

Impact<\/h2>\n

The LGBT community is a target for physical violence, hate crimes, police harassment and surveillance. <\/p>\n

The prohibition of same sex relations also contributes to increased HIV infection rates as fear of mistreatment discourages gays and lesbians from getting tested and accessing health care. <\/p>\n

The rates of suicide and substance abuse are also higher within the LGBT community with one survey showing that LGBT people in Botswana have suicidal thoughts and use drugs more frequently than heterosexuals. <\/p>\n

However, LGBT people have experienced legal progress in recent years. Three years ago, the Court of Appeal ruled that the government\u2019s failure to officially recognise LeGaBiBo (Lesbians and Gays of Botswana) was unconstitutional. <\/p>\n

And in 2017, a transgender rights activist won an important ruling at the High Court to legally change her gender on government documents. <\/p>\n

These cases are important data points because they suggest that attitudes of judges may have evolved since the 2003 upholding of Botswana\u2019s anti-sodomy laws.<\/p>\n

But there are a few signs that things are possibly changing. Last January, President Mokgweetsi Masisi made an unprecedented statement of public support for LGBT rights in Botswana. <\/p>\n

In 2016, Mmegi, one of Botswana\u2019s main daily newspapers, reported that 43% of Batswana are not opposed to having homosexual neighbours, making it among the more tolerant countries in Africa. <\/p>\n

But as is the case elsewhere in the world, acceptance of homosexuality varies by age and education level. Younger and more educated Batswana are more accepting of same sex relations.<\/p>\n

\"The <\/p>\n

Andrew Novak does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.<\/span><\/em><\/p>\n

Source:<\/strong> The Conversation \u2013 Articles (AFRICA)<\/a><\/small>
\n<\/p>\n

Read more on The Conversation<\/a>.<\/p>\n

Join the fun:<\/strong> Add Your event<\/a> | Submit a Press Release<\/a> | Add your listing<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Botswana joins list of African countries reviewing gay rights: The High Court in Botswana is deliberating on a motion to legalise same-sex relationships Shutterstock Botswana\u2019s High Court is considering a challenge to the provisions of the penal code criminalising consensual same-sex relations in the country. It will hand down its judgment in June. The challenge […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4584],"tags":[3050,385,8890,2345,4240,4854,34231,1870],"class_list":{"0":"post-133252","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-africa-news-2","7":"tag-african","8":"tag-botswana","9":"tag-conversation","10":"tag-countries","11":"tag-joins","12":"tag-list","13":"tag-reviewing","14":"tag-rights","15":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/133252","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=133252"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/133252\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=133252"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=133252"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=133252"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}