Same-sex appeal case is of international interest - CoA Judges

• CoA reserves judgment in same-sex appeal case

The Botswana Court of Appeal will communicate the date of judgment in a case in which the State is appealing the 2019 High Court decision on decriminalisation of consensual same-sex sexual activities. The court will do so at a later date once the panel of judges has assessed arguments from both parties.

Court of Appeal Judge President Ian Kirby told Court that “the case is of international interest and a sensitive Constitutional matter, which therefore requires much consideration.” He added that he was not in a position to stipulate when the judgment would be ready because of the due diligence required, but promised that communication would be sent out soon. The five judges who are presiding over the matter are Kirby, Chief Justice Terrence Rannowane, Justices Isaac Lesetedi, Monametse Gaongalelwe and Mercy Garekwe.

The Appeal Court in Gaborone yesterday heard submissions from groups that represent the interests of the Lesbians, Gays, Transgenders and Intersex (LGBTI) community, with the main submissions being from LGBTI advocacy body, LEGAGIBO, and Letsweletse Motshidiemang, popularly known as ‘LM’ who was the first applicant in the case after he, while still a tertiary student, took Government to Court over Section 164 and 165, of the Botswana Penal Code, which criminalises same-sex relations, specifically homosexual acts. Motshidiemang had in his application indicated that these two Sections violate homosexual’s personal dignity and liberty. Section 164 and 165 describe homosexual acts as “unnatural offences.” The two parties were supported by Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and Rainbow Identity. After deliberations from State and defendant legal representatives, the Appeal Court indicated in part that in current times, Section 164 cannot now be considered to be a law that is neither reasonably required nor necessary for public morality. To correlate with the arguments, the Judges indicated that “the attitudes and approach of the society of Botswana has become more tolerant to homosexuals; The world has changed attitudes, Botswana neighbours South Africa, a country that permits homosexuality. There is also no harm to the public or any public interest as the act occurs in private.”

The LGBTI community was represented by two lawyers, Rockfall Lekgowe and Tshimao Rantao, while the State was represented by Advocate Sidney Pilane. After the judgement that empathetically struck down Section 164 of the Botswana Penal Code, a decision reached by three judges – Abednego Tafa, Micheal Leburu and Jennifer Dube - at the Gaborone High Court judgment on 11 June 2019, the State filed an application to appeal the consensual same-sex intimate activities among the LGBTI community. The full bench of the Botswana High Court concluded that the criminalisation of consensual same-sex sexual activities violates the constitutional rights of LGBTI to dignity, liberty, privacy and equality.