Same sex activities are deemed criminal in the Penal Code of Botswana, though homosexuality is not prohibited. Gays, lesbians, bisexuals, and transgenders are still fighting to be legally allowed to engage in same sex intercourse.
In the case which the government has appealled, the Attorney General is appealing a judgement which ruled against sections 164 and 165 of the Penal Code of Botswana which criminalizes unnatural sexual acts.
According to section 164, Any person who- has carnal knowledge of any person against the order of nature; has carnal knowledge of an animal; or permits any other person to have carnal knowledge of him or her against the order of nature, is guilty of an offence and is liable to imprisonment for a term not exceeding seven (7) years. Section 165 further stipulates that any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment for a term not exceeding five (5) years.
In regard of these pieces of legislation, the government of Botswana challenges a ruling made on 11 June 2019, where a full bench of the Botswana High Court unanimously found that the criminalisation of consensual same-sex sexual activities violates the constitutional rights of lesbians, gays, bisexuals and transgender persons to dignity, liberty, privacy and equality. The court held that “Anal sex is merely a variety of sex”.
Arguing the issue of right to privacy, the state attorney, Advocate Sydney Pilane held, “As for the right to privacy my Lord, perhaps everybody can do as they like in the privacy of their homes. What business does the law have in the houses of people? if that is the argument offered, FINE! If that is going to be the norm then everybody should be allowed to do as they please it does not matter what it is. Take drugs, disobey all the laws in the Penal Code, after all they are in the privacy of their homes. Is this the judicial wisdom of the court going to hand down to rule the country?”
The Court of Appeal is set to deliver a verdict on the matter at a later date. Meanwhile, the issue remains a hot topic, not only provoking the penal code, and nature, but also religion, and culture.
