Botswana is a rainbow nation

On Tuesday afternoon, 11^th June 2019 the Botswana High Court made a ruling that caused a local, regional and international stir. Within minutes of the ruling which repealed Section 164, 165 and 167 of the Penal Code international news outlets such as CNN and the BBC had run with the story. LEGABIBO’s Caine Youngman suspects that it is largely to do with the reasoning that Africa is not seen as having the best track record when it comes to human rights including LGBTQI+ rights. For example, in other parts of Africa such as in Nigeria homosexuality is punishable by death, and in Uganda one can be sentenced to life.

Last month, May 2019 the Kenyan courts upheld a law which makes gay sex illegal; a move which LGBTQI+ activists had predicted. In a previous Botswana Guardian article titled ‘The People versus the LGBTQI+; what comes first, the law or people’s attitudes?’ a gender activist from Zambia who also identifies as a transgender woman explained that, “The courts are under pressure right now. Angola decriminalised. Kenya is waiting for Botswana to rule. Botswana is also waiting for Kenya to rule. This is so that when the bench rules they can say it is a trend in Africa. No one (country) wants to take the first move. My bet is on Botswana to rule first,” observed the Zambian activist. By decriminalizing consensual same-sex activities Botswana now joins four other SADC countries; South Africa, Angola, Mozambique, and Lesotho, and South Africa also has these rights enshrined in its constitution.

Youngman explains that after close to 20 years of advocating for the recognition of LGBTQI+ rights the focus is on celebrating this historic moment, “This ruling means everything. We are taking time to appreciate this victory,” says the LEGABIBO representative. He also adds that, “When I heard the ruling the immediate sensation I felt was relief and joy. For me as a gay person this is testimony that human rights in Botswana are respected, regardless of our differences.”

Youngman also observes that as activists they have enormous work to do going forward. “This is not the end, nowhere near the end,” he says. Education and awareness raising are still needed in the community according to Youngman, particularly to shift community perceptions “so they are not left behind as the law progresses.” The advocate explains that in 2013 they made a visit to the House of Chiefs for the first time to engage the DiKgosi, and raise awareness on general LGBTQI+ matters. “We asked for permission from the DiKgosi to engage with their different constituent’s including traditional leaders who are also sometimes seen as mediators in the community, they are sort to seek interventions for issues hence they are one of our target groups.”

Other community members who will continue to receive this education include the Village Development Communities or VDC’s which Youngman also observes as being focal points in the villages. “Over the years Botswana Council of Churches and the Organisation of Independent African Churches. We will also continue to engage with health workers, teachers, police and the community in general.”

Ultimately Youngman hopes that Botswana will now establish a national human rights institution, one governed by The Paris Principles. “We need to establish a national human rights institution. One mandated to prosecute and investigate human rights violations. One of its mandate will be to preach human rights. This institution will be mandated by the law to teach human rights.” The LGBTQI+ rights activist observes that Botswana currently does not have human rights as part of the school curriculum. “I was educated here in Botswana and I don’t ever remember being taught human rights but I was taught about our different religions. I had to learn that I have rights out there not in the classroom.”

This education and awareness will also help to alleviate fear based responses to this ruling. Youngman observes that he has already heard some of these fear based reactions, including aspects of homophobia but he wants to assure those with any doubts that nothing much will actually change. “People need to understand that this ruling does not in any way say that anybody will change and become gay. All the ruling says is that all who are gay now have the same rights as someone who is not gay.”

A human rights activist, and former BONELA Chairperson who is now the Leader of Opposition Duma Boko also represented a man who was charged with having sex against the order of nature back in July 2003 under the Kanane v. State. “The Utjiwa Kanane case was done by me, and it went all the way to the Court of Appeal. It was actually one of my best cases. The judges even praised me on how the case was handled,” says Boko, speaking from South Africa. Boko also applauds the courage of the judges who gave the judgement this week. “I welcome the development and enrichment of our human rights jurisprudence. And I salute the courageous judges. We are on way to maturing as a democracy.” Adding his view is Diba Diba, the current Chairperson of the Law Society of Botswana (LSB) who shares similar sentiments to his colleague, and welcomes this judgement, which he sees as a major development in human rights law. “It is a significant step in the fight against discrimination and prejudice and a respite for the marginalized,” adds Diba.

Keikantse Phele, another human rights activist and local lawyer also observes that the law, or the gaps in the law have at times seemed to be the stumbling block to rebuking these sections of the Penal Code. She also cites the Kanane case. “One of the fundamental statements they made at the Court of Appeal was that the public itself was not ready to accept homosexuality. That for us had been one of the greatest challenges. The Kanane ruling was not based on inclusion, it was based on public morality, Christian principles and social norms.” Phele observes that the judges presiding over this week’s landmark judgment thoroughly engaged attorneys from both sides in February this year during the hearing of the case. “The Judges showed an appreciation of information presented before them. Also by referring to domestic and international laws. I am of the view that the Attorneys for the Applicant – Gosego Lekgowe and Tshiamo Rantao – who represented LEGABIBO as amicus curiae, presented the Court with expertise and valuable knowledge.”

Phele, who also works for the Botswana Gender Based Violence Prevention and Support Center observes that the most important aspect is that in terms of human rights, the courts relied on local context. “The courts spoke to Vision 2016, and Vision 2036. They also spoke to locally decided cases for instance the Unity Dow Case and other public litigation cases like the Thuto Rrammoge case. The courts also quoted international law and scholars in support of inclusion and the promotion of LGBTQI+ rights,” she says.

Phele reminds of the redundant argument that homosexuality is a foreign concept. “We must disabuse ourselves from thinking that the promotion and protection of human rights are a Western concept or a Western idea, they are not. We must learn about African sexualities,” says Phele. She also observes that the Penal Code laws do not align with Botswana’s constitution. “We inherited these laws as a British Protectorate. We are now creating our own narratives, laws created with our own input and perspective,” she says.

This article was written by Boitshepo Balozwi . It is part of Gender Links #VoiceandChoice series. It was first published in the Botswana Guardian.