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HOORAY FOR THE GAY

Keletso Thobega

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CELEBRATION TIME: The LGBT community celebrated the historic ruling on same sex romance this Tuesday

Botswana’s judicial system has proven to be progressive and upholds human rights, says attorney Tshiamo Rantao following yesterday’s Gaborone High Court landmark ruling that decriminalised same-sex relations.

He described the ruling as groundbreaking and a victory for Botswana adding that it was a brilliant and well-researched judgment. “Not single but three judges which is commendable. This means that members of the LGBT community who want to have sex should have it their way and there will be no peeping Thomases,” he said. He added that it was pleasing that the judgment dealt with all arguments for and against same-sex sexual relations. Court impugned decisions that criminalise same-sex sexual relations in the provision of consenting adults, he said.

Rantao, who was representing the applicants in the matter, explained that this ruling meant that same-sex relations were not criminal with immediate effect, however clarifying that it didn’t necessarily mean that same-sex couples could get married as yet. He said the issue before court was only in respect of same-sex sexual conduct and consenting adults in same-sex sexual relationships, adding that the issue of marriage between same-sex might come to court.

“This type of litigation is in public interest, and so we do not bring an avalanche of cases but bring building blocks and take it from there.” In the ruling, a bench of three judges, Michael Leburu, Abednego Tafa and Jennifer Dube following a three-hour judgment, repealed Sections 164 and, and 165 of the Penal Code, which they said were discriminatory to the gay community. The sections criminalised sexual conduct between two consenting adults who identified as homosexuals. The three judges served the unanimous ruling before a packed courtroom 8 and 9. The applicant in the matter, identified as LM, is a 24-year-old Literature student at University of Botswana. LM stated in his application that since he was 10-years-old, he had found that he did not find interest in activities of boys, which attracted ridicule to him and that when he reached puberty, he was attracted to other boys.

He further stated that when he was in his teens, he expressed love to a man for the first time. Since then he had dated men and was happy. LM stated that he was dating a man, who he had same-sex relations with, but the latter, in accordance with the Constitution, was considered criminal. In 2016, LM filed an application to the high court that challenged Section 164 and 165 of the Penal Code. The applicant argued in part that Section 164 is vague and must be struck down.

“There must be clarity and consistency in laws. Without such it lacks predictability. How did the law intend to police private matters?” The applicant was supported by LEGAGIBO, which was admitted as amicus curae (friend of the court) with the support of the Southern Africa Litigation Centre. In the ruling yesterday, the judges stated that there is indirect discrimination on the applicant which is viewed as criminal. They said sections 164 and 165 are ultra vires the Constitution and that 167 must be severed from Section 167.

“Sex is not only for procreation – no longer sustainable view. Sodomy laws must be shelved. They must be placed in museums. Anal sex is a variety of sexual activity.”They also stated that it was difficult to regulate human interaction and that the laws infringe on human rights. They said that stipulations of section 164 and 165 violate several basic human rights, and the rights to dignity and privacy.

“Our constitution provides for protection for all and there is no place for discrimination in the world. It is not the right of the law to regulate affairs between consenting adults. If so, it is a violation of Constitutional rights.”Leburu, who read out the judgment on behalf of the three judges, said “we cannot use cultural rights to deny people their rights.

“Sexual acts do not according to us trigger any emotional issues with the public. It is a matter of privacy and consensual sex between LGBTI cannot be regulated “The state cannot place sheriffs in people’s bedrooms and subject individuals to degrading and inhumane treatment based on their sexual engagements.”

There were cheers and ululations from the crowd, with lots of hugs and kisses exchanged, as the gay community sighed with relief after a long journey. Chief Executive Officer of LEGAGIBO Anna Mmolai-Chalmers could not hide her joy and was almost in tears. In a brief interview, she said that she never imagined that this would happen in her lifetime. “This whole case has been a rollercoaster. We are relieved over the respectability of the judicial system. We are grateful to the community for their support.”

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