Consensual same-sex relations were a crime in Botswana for decades. But a ruling by the nation’s top court on Tuesday just legalized them — marking one of the greatest victories for LGBTQ rights on the continent ever.
Botswana’s penal code, which dates back to the 1960s, when the southern African country was a British colony, contained laws that directly discriminated against same-sex couples. One section, for example, stipulated that someone found guilty of “carnal knowledge of any person against the order of nature” could receive seven years imprisonment.
That didn’t sit well with Letsweletse Motshidiemang, a 21-year-old student at the University of Botswana. He took the government to court in March because he felt it should no longer discriminate against same-sex relationships.
“I am in a sexually intimate relationship with a man,” he told the Tswana Times after filing his affidavit. “By virtue of one or more of these provisions of the law, I am prohibited from expressing the greatest emotion of love through the act of enjoying sexual intercourse with another consenting adult male that I am sexually attracted to and who is also sexually attracted to me, as consenting adults.”
And to the surprise of many, Botswana’s High Court ruled in his favor only three months later.
“A democratic society is one that embraces tolerance, diversity and open-mindedness,” Justice Michael Leburu said of the ruling, adding that the anti-same-sex laws held back Botswana’s entire society. ”Societal inclusion is central to ending poverty and fostering shared prosperity.”
“Sexual orientation is human, it’s not a question of fashion,” he continued. “The question of private morality should not be the concerns of the law. ... The state cannot be sheriff in people’s bedrooms.”
The decision reflects the attitudes of many in the country. Last December, Botswana’s President Mokgweetsi Masisi showed his support for decriminalizing homosexuality. “Many people of same-sex relationships in this country ... have been violated and have also suffered in silence for fear of being discriminated,” he said. ”Just like other citizens, they deserve to have their rights protected.”
And a 2016 study by Afrobarometer showed that 43 percent of people in Botswana were not opposed to having LGBTQ neighbors. They were likely among those in the packed courthouse who cheered the decision.
It still required much advocacy to make Tuesday’s ruling possible. “This victory is a result of years of courageous efforts by human rights and LGBTI activists in Botswana to overturn these unjust and discriminatory laws,” Mindy Michels, the director of Freedom House’s emergency assistance program, told me.
The hope now is that the law change will make the life of many LGBTQ Botswanans much better.
“This judgment can make a massive change for our lives,” Anna Mmolai-Chalmers, who leads the pro-LGBTQ rights group Legabibo in Botswana, told CNN on Tuesday. “The court has upheld our dignity, our privacy, and our liberty,” she continued. “It means freedom.”
The LGBTQ community still struggles for acceptance in many parts of Africa
The jubilation in Botswana is tempered by the many problems still facing the LGBTQ community in much of Africa.
Just two weeks ago, Kenya — one of the continent’s most powerful countries — upheld its discriminatory laws against LGBTQ individuals despite a staunch legal challenge.
The 2016 Afrobarometer study shows the average acceptance rate for living next to gay individuals on the continent is just 21 percent, an abysmally low number. The chart below indicates that Cape Verde leads the way with 74 percent, while Senegal only has a 3 percent acceptance rate.
That won’t stop the many activists, including Legabibo’s Mmolai-Chalmers, who want to see full rights for the continent’s entire LGBTQ community. “We can finally start building a more tolerant society,” she said in a Tuesday statement. “The real work starts now.”