Legalbrief | your legal news hub Friday 24 September 2021 Revolutionary victory for LGBT rights in Africa The recent judgment by a full Bench of the Botswana High Court in Motshidiemang v Attorney General and Another declared that provisions of the Botswana Penal Code which criminalised consensual sodomy in private were unconstitutional and invalid. Constitutional law expert Professor Pierre de Vos believes the judgment has ‘potentially profound’ consequences for the protection of sexual minorities in Botswana and beyond. ‘For the first time, a Botswana court held that the constitution prohibited discrimination on the basis of sexual orientation,’ he adds. In an analysis on his Constitutionally Speaking blog, he notes the court did not accept the argument that section 164(a) and (c) of the code were void because they were too vague – as the Botswana courts had previously interpreted these sections as prohibiting sexual intercourse in the form of anal sexual penetration. This was not a bad thing, he says, as it meant the court could deal with the case by engaging with the substantive question of whether the provisions infringed on several constitutional rights in a manner not justified by the Botswana constitution. The High Court found that the provisions infringed on the right to privacy, the right to liberty as well as the right to dignity. De Vos adds: ‘From a constitutional law perspective, the High Courts’ decision to expand the reach of the discrimination provision in constitution to include discrimination on the basis of sexual orientation, is the most important legal aspect of the judgment. The court held that the prohibition against discrimination on the basis of sex should be read as including sexual orientation.’ This decision, he says, was made easier because the Botswana parliament had already recognised ‘sexual orientation’ as a ground for discrimination when it passed the Employment Amendment Act in 2010. This amendment made it unlawful to terminate employment on the basis of sexual orientation. In order to convince the court that the sections of the Penal Code in fact discriminated against Motshidiemang, De Vos says there was another ‘hurdle to overcome’. This was because the relevant provisions of the Penal Code were amended several years ago to make them ‘gender neutral’. The state argued that there was no discrimination in this case as the law prohibited anal sexual intercourse – whether two men or a man and a woman was involved. The High Court invoked section 15(1) of the Constitution which prohibits not only direct discrimination, but also discrimination ‘in effect’. In other words, even a ‘neutral law’ could be discriminatory if its impact was more severe on a specific group. As anal sexual intercourse is usually associated with gay men, the criminal provision ‘has substantial greater impact on the applicant as a homosexual, who engages only in anal sexual penetration, than it does on heterosexual men and women.’ It was therefore discriminatory. Finally, the court held that there was no justification for the infringement of these rights. The state provided no justification for infringing on the rights of lesbian, gay, bisexual and transgender (LGBT) people – except to make a general unsubstantiated and speculative claim that sodomy was against public morality and that the law was aimed to promote the public interest. The court rejected these arguments, noting that it would not be sufficient for the state to show that the public supported the discriminatory legislation and that the state provided no evidence why it would be in the public interest to regulate the private sexual acts of consenting adults that cause no harm to anyone. De Vos adds the judgment is ‘a meaningful and potentially even revolutionary victory for LGBT rights on our continent. It also suggests that I might be wise to temper my growing scepticism about the ability of courts to contribute to radical social change.’ The Botswana High Court decision gives hope to LGBT people in the 34 African countries that still have similar laws in place. ‘Most share a common history, with criminalisation finding its way into local law through British colonial penal codes inspired by Victorian-age morality,’ says the University of Pretoria’s International Human Rights Law Professor Frans Viljoen. In his analysis on the judgment on The Conversation site, he says he believes the decision is a landmark and sets a precedent on which other African courts can rely. The situation in Kenya differs as its ‘political elite’ have not taken a public stance that accepts LGBT people, and public acceptance of them, according to an Afro-barometer survey, stands at about 14%. However, other southern African courts seem to hold more promise. Of the seven most ‘tolerant’ countries in the survey, five are from southern Africa – SA, Mozambique, Botswana, Mauritius and Namibia. Laws criminalising consensual same-sex relations have been scrapped in SA, Mozambique and Botswana. But they remain in place in Mauritius and Namibia. Says Viljoen: ‘These two countries seem to provide fertile ground for the next challenges to eventually ensure that Africa is rid of colonial relics that continue to deny the full humanity and citizenship of many people on the continent’..