Botswana legalises being gay as High Court overturns Colonial-era law

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Botswana has became the latest country to decriminalise gay sex after the High Court struck down laws punishing homosexual acts with up to seven years in jail.

Judges said in their unanimous ruling that it is not in the public interest to pursue convictions against people taking part in consensual activities in private.

The ruling came after an anonymous petition was filed with the court, arguing that society had changed and homosexuality was more widely accepted. 

Botswana’s anti-gay laws are a hangover from its time as a British colony, with the law penned by the British in 1861 before it was exported across the Empire. 

Earlier this year, Angola also scrapped Colonial-era laws banning gay sex while outlawing discrimination based on sexual orientation earlier this year.

But, just last month, Kenyan judges upheld laws banning gay relationships after judges found they were not discriminatory.  

Most African countries have laws either specifically or implicitly outlawing gay relationships, which usually date back to their time as colonies. 

In Botswana, jubilant activists in the packed courtroom cheered the unanimous decision was handed down. 

Those arguing against the laws criminalizing gay sex say they leave people in the LGBT community vulnerable to discrimination and abuse while making it difficult to access basic health and other services.

The Botswana-based non-governmental group LEGABIBO, which supported the anonymous petitioner in the case challenging the sections of the penal code, has said such laws ‘infringe on basic human dignity.’

The 24-year-old student told the Christian Science Monitor: ‘Of course I wanted to win, but I didn’t expect it.’

Tuesday’s ruling led to rejoicing by rights groups that had expressed frustration with the Kenyan decision last month.

Botswana’s High Court said in its ruling that penalizing people for who they are is disrespectful, and that the law should not deal with private acts between consenting adults.

The right to privacy includes sexual orientation, which is innate and not a fashion statement, the judges said.

The ruling also cited the recent decriminalization in India and elsewhere. It also pointed out that all three arms of Botswana’s government have expressed the need to protect the rights of the gay community.

Ahead of the ruling, LEGABIBO shared a comment attributed to President Mokgweetsi Masisi: ‘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.’

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