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"Unnatural practises" law stands in Botswana

October 10, 2003

In its ruling, The High Court in Botswana said that, "Gay men and women do not represent a group or class which at this stage has been shown to require protection under the constitution." Therefore the laws that forbid same-sex relations in Botswana, for both men and women, are constitutional and would remain unchanged. This just after the USA Supreme Court ruled the exact opposite, decriminalising same-sex sex in the USA.

Utjiwa Kanane (a Botswana citizen) and Graham Norrie (a British citizen) were arrested in December 1994 and charged under sections 164 and 167 of the Botswana Penal Code, with engaging in unnatural acts and indecent practices between males. In April 1995 at their initial hearing at the Magistrates' Courts in Maun, Kanane pleaded not guilty to the charges laid against him. At this stage, Kanane and Norrie were jointly represented by local Attorney, Joe Malatsi, who has since passed away. In May 1995, a separation of trial was granted and Graham Norrie pleaded guilty to the latter charge of indecent practices between males. He was fined and subsequently left Botswana.

Kanane being indigent and without means, found himself without any legal representation. He was granted bail and the next trial date was set for September 5, 1995. Ditshwanelo (a human rights organisation in Botswana) then made efforts to raise money for his legal defence. Ditshwanelo's interest in the case arose from the fact that they believe that the criminilisation of same sex sexual relations is a Human Rights issue. The implication of sections 164 and 167 of the Botswana Penal Code is that homosexuality is a criminal offence. The constitutional challenge to these sections, which were raised in the case, is of great importance to the lesbian, gay and bisexual community in Botswana.

In 1999, through informal discussions with the State, Ditshwanelo was able to negotiate for the charges to be dropped. However in 2000, with a change in State Counsel at the Attorney General's Chambers in Francistown, they were informed that this was not a possibility. In April 2001, Ditshwanelo received notification from the Francistown High Court that the matter was to begin on May 31, 2001.

Ditshwanelo then secured the services of local Attorney, Duma Boko to challenge the provisions of Sections 164 and 167 of the Penal Code on Constitutional grounds before the High Court in Francistown. Boko is a lawyer with profound interest in human rights. He has, in the recent past, done research on the issue of homosexuality and the decriminalisation of it. He has also participated in Ditshwanelo's related conferences and workshops.

On March 22, 2002, the High Court (Judge Mwaikasu) upheld the constitutionality of Sections 164 and 167 of the Penal Code. It held that the provisions of the Botswana constitution that protect rights to privacy, association, and freedom of expression could be curtailed by legislation enacted to support "public morality." The Court found that Sections 164 and 167 prevented harm to public morality due to "carnal knowledge against the order of nature."

Additionally, it found that although lesbian intercourse was not considered to be any sort of carnal knowledge (ie, neither natural nor unnatural), there was no gender discrimination in the penal code. The case was taken on Appeal before the Court of Appeal in July this year (2003). Judgement was passed in the case on July 30, 2003 by a full bench of 5 judges of the Court of Appeal (necessary for a constitutional matter).

Their decision is as follows:

  1. Section 167 of the Penal Code as it stood when Mr Kanane was charged under it, was a violation of the Constitution. Therefore Mr Kanane cannot be charged under this provision. Their decision was based on the fact that the law at the time discriminated on the basis of gender. However the penal code was amended in 1998, making the section applicable to both males and females.

  2. Section 164 (c) did/does not discriminate on the basis of gender and is therefore not unconstitutional. The case relating to the charge under this section, has been remitted to the Magistrate's Court at Maun. However, the Court of Appeal made a recommendation to the Attorney General to consider the fact that the case has been going on for 8 years and whether "it would be fair or constitutional to proceed with the prosecution".

  3. Despite the "well researched and ably presented argument" of Mr Boko, regarding the discriminatory effect of s.164 against "gay men and lesbians", the court had "indications before it that the time has not yet arrived to decriminalise homosexual practices even between consenting adult males in private. Gay men and women do not represent a group or class which at this stage has been shown to require protection under the constitution." In determining this, they considered whether "public opinion in Botswana has so changed and developed that society... demands such decriminalisation". They stated that there was no evidence before them to show that public opinion in Botswana has so changed or developed. They found that public interest must therefore always be a factor in the court's consideration of legislation particularly where such legislation reflects a public concern.

  4. They found that the sections of the constitution did not hinder "gay men and lesbians" in their association with one another (as submitted by Mr Boko). They found nothing to prevent them from associating within the confines of and subject to the law.

  5. However, the court dissociated itself completely from the views of Judge Mwaikasu of the High Court. Judge Mwaikasu upheld the constitutionality of the Penal Code, stating that discrimination was permitted by the Constitution on the grounds of public morality. He stated, in his judgement, that "sexual liberation has been a social, spiritual and physiological disaster" and demonstrated "the likely harmful effect both to the individual and society as a whole when liberal sexuality is allowed to erode moral values in a given society."
This article was compiled using information provide by Ditshwanelo

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