Gay sex legalized, ends colonial-era laws

NAIROBI. KENYA >> A high court in Botswana struck down two colonial-era laws Tuesday morning, effectively legalizing gay sex and making this southern African country the first on the continent to erase that colonial legacy through its courts.

Reading the unanimous ruling of a panel of judges in front of a packed courtroom, Justice Michael Leburu said that sexual orientation “is not a fashion statement” and that the laws as they stood violated citizens’ rights to privacy and freedom from discrimination. While seldom enforced in Botswana, the laws carried the possibility of up to a seven-year jail sentence.

“It is not the business of the law to regulate the private behavior of two consenting adults,” Leburu said.

The case against the laws was brought by an anonymous gay man, identified only by the initials L.M.

“We are not looking for people to agree with homosexuality but to be tolerant,” he wrote in his deposition.

Gay sex is criminalized in more than half of African countries, many of which inherited penal codes from colonial powers such as Britain. The subject is widely seen as taboo, and discrimination and harassment are rife.

Last month, a Kenyan high court heard a similar case but dismissed it. Other countries such as Mozambique and Seychelles have simply erased mention of gay sex from their penal codes during the rewriting process that has accompanied constitutional reform. Botswana’s powerful neighbor, South Africa, is the only African country to have rights based on sexual orientation explicitly written into its constitution.

Courts in other former British colonies outside Africa have made decisions similar to that of Botswana. Leburu cited India’s ruling in 2018 as one precedent on which his own decision was built.