POST DECRIMINALIZATION

By Raymond Kolanyane

Nine months after the protests by the Evangelical Fellowship of Botswana over the decriminalization of consensual same-sex sexual activity, there is a need to explore the events that transpired.With emotions bated, the chance of sensationalization reduced and elections on the horizon this is the perfect opportunity to address the lack of understanding surrounding the case. It is of importance that we examine the fear-mongering that extended to the public, elections and the media. In closing, we will look at the remedies required to dissipate the effects of these protests.

The journey began in 2017 when Letsweletse Motshediemang and his legal counsel brought this case before the High Court. Letsweletse argued that the law contained in section 164 (a) and (c) of the penal code, that criminalized penetrative sex between two men violated his rights to privacy, liberty and non-discrimination.

It was said that heterosexual couples get to express their love through sex but that he as a gay man was robbed of that right. It was undignified that he was also robbed of having the privacy of his bedroom with his partner respected by having this law that was of no public interest present.

LEGABIBO was also able to prove the discrimination fostered in health facilities due to the existence of this law; gay men were reported to be afraid to access sexual reproductive health care due to fear of being arrested.This in turn increased the prevalence of HIV in general and in the population of men who have sex with men.

The High Court in 2019 ruled in favor of Letsweletswe and so did the Court of Appeal in 2021. It is important to note that there was expressed disapproval of the case at the initial stages from certain religious groups but it was withdrawn from court. At the end of 2022, a Bill was published in the

Botswana Gazette to remove sections 164 (a) and (c) from the penal code. In May 2023 during the Universal Periodic Review Process and in June at a Kgotla meeting in Bokspits, the government’s intention to remove this law was stated as part of its strides to improving Human Rights in Botswana. It is with these last developments that we saw the start of the anti-decriminalization movement.

At the center of this movement was grave misinformation about the case and its intention to cause public fear and panic. To begin with, it was said that this case would lead to children being recruited into homosexual acts through school syllabuses. The case was about sex between two adult males who by law (above the age of 18) can consent to have sex not about changing the school syllabus.

Secondly, people were led to believe that this case would lead to gay men being indecent in public when the case was about sex in the privacy of one’s bedroom. Other misconceptions include that the case was about allowing gay marriage and the beginning of allowing people to engage in sexual acts with animals.At the center of this case is consent; animals and children cannot consent to sex and this case would not lead to allowing non-consensual sex.

From the media coverage of the protests, interviews were captured of people citing these reasons as to why they signed petitions and were protesting. These protests were scheduled to be nationwide but only happened in a few locations. Children could also be seen holding placards during these protests, which by the way is an illegal and abusive act. The lack of response from most children’s rights organizations was also concerning.The media coverage also extended to radio, television and newspaper interviews for members of the Evangelical Fellowship of Botswana.

Another area of concern involves elections; a number of members of parliament organized to meet and aligned themselves with the anti-decriminalization movement, members of parliament were on media platforms being homophobic and religious bodies threatened to not vote for those supporting the case. Some political parties made it their mandate to have anti-homosexuality campaigns. Post decriminalization, however, we need to see manifestos of political parties addressing issues affecting the LGBTIQ+ community.

Community leaders also need to understand the impact that their words have on the everyday life of an LGBTIQ+ individual; their open homophobic comments rationalize violence and abuse that is directed towards members of the LGBTIQ+ community.

In 2024, we need to be encouraging people to vote and not withhold their votes to influence policies. Moreover, we need to be voting for leaders that respect and promote the rights of marginalized groups. While it is very commendable that some media platforms made the effort to engage LGBTIQ+ rights activists to address the concerns of the public and even attended workshops, there were still areas of concern.The bias that existed in some of the articles was alarming, giving more platforms to homophobic comments.

The headlines that were written were harmful to the LGBTIQ+ community and there was no fact-checking in some of the articles.The principle that is taught to journalists is that they must do no harm, which is why the news they deliver to the people must contain truth.We still have a long way to go in creating representation for the LGBTIQ+ community in the media. We need to share more stories about the community and do so in a way that is honest, humanizing and invokes respect.

The principle of ‘Botho’ that we are taught at a young age encompasses respect for each other’s rights. As Batswana, we all have the constitutional right to freedom of conscience, which means that we should not be advocating for the mistreatment of others due to our differences in beliefs.We have to respect this right and have more effort from the government on promotion of this right as it relates to the LGBTIQ+ community. Religious leaders also need to understand and respect this right.

Understanding and promoting the right to freedom of conscience would be instrumental in creating policies and legislation that strives for inclusion. From these protests, it is evident that legislative frameworks need to be established to protect the LGBTIQ+ community from violence, homophobic comments and harmful narratives. Post decriminalization, we have seen community leaders (including religious leaders, the President and the Human Rights Office) make an effort to understand the challenges of the LGBTIQ+ community however these efforts need to be amplified.The support that the LGBTIQ+ community got from some religious leaders during the protests was also a sign that there is hope for us as a nation to be more compassionate and caring.

With the rise of Anti Homosexuality Bills in Africa, we should not take for granted the courts decisions on this case.Their rulings strengthened Botswana’s resolve to respect Human Rights and protect the LGBITQ+ community. It is also our respect for the principle of separation of powers that ensured that the other organs of government knew to respect the decision of the courts in the end and leave this law repealed.