Following on from last Thursday’s appraisal of Lesbian, Gay, Bisexual and Transgender (LGBT) rights in Africa, here is the current situation in Botswana. We will try to give you the status of each of the nineteen Commonwealth countries in Africa over the coming weeks.
Law that Criminalises Homosexuality
Practical Consequences of the law
Constitutional Clause on Equality or Right to Privacy
The Penal Code of 1964
Section 164 criminalises ‘Unnatural offences’
Section 165 ‘Attempts to commit unnatural offences’
Section 166 criminalises ‘Indecent practices between persons’. An unnatural offence is ‘carnal knowledge of any person against the order of nature’, or with an animal; and includes any person allowing another to have carnal knowledge of him or her against the order of nature. It thus criminalises both male and female homosexual acts, with possible imprisonment of up to 7 years. It is also an offence to commit an act of ‘gross indecency’ with any person whether in public or in private.
Section 141 defines rape as unlawful carnal knowledge of another person, or causing the penetration of a sexual organ or instrument into another person for the purposes of sexual gratification, or causes the penetration of another’s sexual organ into his or her person without their consent, or with consent obtained by force, or with impersonation of a person’s spouse.
Kanane v. State 1995 BLR 94 (High Court)
The State may enact legislation that overrides the freedoms of association and conscience, and the right of privacy in order to defend public morality. Laws prohibiting homosexual conduct under the labels of “unnatural carnal knowledge” and “gross indecency” thus do not violate constitutional rights.
These are the main local human rights organisations which seek to advocate greater recognition of LGBT rights in Botswana:
Bonela – Botswana Network on Ethics, Laws and HIV/AIDS
Ditshwanelo – Centre for Human Rights
LeGaBiBo – Lesbians, Gays and Bisexuals of Botswana
The Constitution of Botswana, 1966.
Section 3 protects the fundamental rights and freedoms of the individual such that every person, whatever his race, place of origin, political opinions, colour, creed or sex, (but subject to respect for others and for the public interest) in matters including life, liberty, security of the person, the protection of law and the privacy of the home. This right can be limited for public interest reasons.
Section 9 further guarantees the protection of the privacy of the home, subject to public safety, order, morality and health. This right can also be limited for public interest reasons.