Botswana court decriminalises homosexuality

Botswana will join the limited but growing ranks of African countries to decriminalise homosexuality following a high court decision on Tuesday to strike down anti-gay penal laws dating back to British colonial rule.

Judges ruled that Section 164 of the country’s penal code, which penalised gay sex with up to seven years in jail, violated rights to privacy and dignity. 

The Gaborone court dismissed the provision as a “British import”. It ruled that homosexuality was not “unAfrican”, a claim made by several leaders including Yoweri Museveni, president of Uganda, who has been publicly hostile towards gay rights. 

The Botswana ruling is a boost for LGBT rights on the continent after a setback last month when Kenya’s high court upheld century-old anti-gay laws that are a legacy of British rule. 

“The time has indeed come to decriminalise consensual private sexual intimacy,” said Michael Leburu, the judge reading out the verdict. “Sodomy laws deserve a place in the museum or archives and not in the world. It is not the business of the law to regulate private consensual sexual encounters.” 

The bid to repeal Section 164 was brought by “LM”, a gay man, and backed by Legabibo, an LGBT group in Botswana. The ruling referenced decriminalisation of homosexuality by India’s supreme court last year but not the Kenyan judgment. 

Homosexuality is still criminalised in more than 30 of Africa’s 54 countries. There is a split between former francophone and lusophone states, which have more tolerant attitudes towards LGBT rights, and former British colonies where laws outlawing anal sex between men remain on the statute books. 

Laws are most draconian in countries practising sharia law, such as Sudan, Somalia and northern Nigeria, where homosexuality is punishable by death. 

South Africa has the most liberal laws, with same-sex marriage legal since 2006.

This year Angola decriminalised homosexuality after repealing a penal provision on “vices against nature” inherited from Portuguese rule. Cape Verde and São Tomé and Príncipe, two other former Portuguese colonies, have also struck down anti-gay laws.

In May, Kenya’s high court rejected an attempt to repeal the colonial-era criminalisation of gay sex, dismaying a growing activist movement in the east African country. Judges said that the ban was constitutional because it represented the values and views of the country, adding that courts “should be loathe to fly in the face of public opinion”. 

The Botswana court on Tuesday ruled specifically that public opinion should not override human rights. 

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There are flourishing — if mostly underground — LGBT communities in many big African cities, although mainstream attitudes are still less tolerant that fast-changing mores in much of the western world. 

Binyavanga Wainaina, the Kenyan writer and activist who died last month, only came out as a homosexual in 2014 after years of internal struggle. In the so-called “lost chapter” in his memoir, he imagined himself confessing to his mother on her deathbed that he was gay. 

Of the certainty, even as a boy, that he was homosexual, when society told him it was wrong, he wrote: “The feeling is not sexual. It is certain . . . It comes every few months like a bout of malaria and leaves me shaken for days, and confused for months.”

Reporting by Financial Times

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