Botswana High Court Declares Sodomy Law Unconstitutional

The High Court of Botswana ruled on June 11 that three provisions of the country’s Penal Code that collectively make soliciting or participating in gay sex a crime violate several provisions of the Constitution.  The 2.4-million person republic, a member of the British Commonwealth of Nations, is centrally situated north of the border with South Africa.  Formerly known as the British “protectorate” of Bechuanaland, it achieved independent rule in 1965 and formally became the Republic of Botswana in 1966, adopting a Constitution with broad protection for human rights.

The Government has the right to appeal the High Court ruling to the Court of Appeal, a constitutional court whose membership consists mainly of judges from other British Commonwealth countries.  However, there were no immediate press reports about the intention of the Government to appeal, and last year, President Mokgweetsi Masisi delivered a speech “publicly signaling his support for same-sex relations” and arguing that LGBTQ citizens “deserved to have their rights respected,” according to a “Country Report” by The Economist Intelligence Unit published on-line on June 13, discussing the ruling.

The case challenging the constitutionality of the gay sex ban did not arise out of a prosecution.  Rather, a courageous individual, Letsweletse Motshdiemang, represented by three local attorneys, filed an application in the High Court seeking a declaration of the invalidity of law, arguing that it violated his constitutional rights.  According to the court’s opinion by Judge Michael Leburu, the Applicant is a 24-year-old student at the University of Botswana who identifies as “homosexual.”

Leburu’s opinion, describing the Applicant’s life, stated: “He does not know why he likes men and does not know why he is different from other men who love women.  He has accepted to live with that condition and it has become his identity.  Currently, he is in a sexually intimate relationship with a man.” Since the criminal laws authorize up to seven years in prison for gay sex, filing an explicit account of his developing sexual identity was very courageous on the Applicant’s part.  Throughout the litigation he was referred to by his initials as L.M., but the court’s June 11 decision names him in full, in recognition of the liberation the opinion brings for LGBTQ Batswana.  (“Batswana” is the term for citizens of the country.)

After the Applicant filed his lawsuit, Lesbians, Gays and Bisexuals of Botswana, the nation’s LGBTQ rights organization usually referred to as LEGABIBO, was allowed to participate as amicus curiae (friend of the court) and supplied expert testimony in support of the lawsuit.

The court’s holding is well summarized by Judge Leburu in a few introductory sentences to the very lengthy opinion.  “Sections 164(a) and (c) and 165 of the Penal Code proscribe and criminalize sexual intercourse and/or attempt thereof between persons of the same sex and/or gender,” he wrote.  “Section 167 proscribes both public and private gross indecency.  What regulatory joy and solace is derived by the law, when it proscribes and criminalizes such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct?  Is this not a question of over-regulation of human conduct and expression, which has a tendency and effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights?  Our bill of rights, as entrenched and enshrined in our Supreme Law (the Constitution), is a manifestum of progressive, long lasting and enduring rights, which yearn for judicial recognition and protection.  Any limitation, in the enjoyment of such rights, therefore, ought to be reasonably justifiable within our hallowed democratic dispensation that subscribes to the rule of law, which recognizes and protects both the majority and minority rights and interests.”

A potential roadblock to victory in the case was a 2003 decision by the Court of Appeal, Kanane v. The State, which involved an actual prosecution of a gay man who appealed his conviction.  At that time, the Court of Appeal expressed the view that the country was not ready to accept homosexuality.  The new decision rejects Kanane, largely on the ground of changing public opinion and a variety of new constitutional arguments that had not been presented to the court in the older case.

Judge Leburu’s opinion emphasizes that the challenged laws were not of African origin, but rather were imported by the British during their administration of Bechuanaland, and were merely carried forward into the Botswana Penal Code during the 1960s as part of a general absorption of existing colonial law.  He also explained that the British laws were “traceable to the Bible,” recounting the story of Sodom and Gomorrah and its traditional interpretation “during the Middle Ages” as a condemnation of gay sex, as amplified in certain New Testament passages.  “Within the British Empire,” he wrote, “same sex activity was prohibited as it was deemed morally unacceptable to the British rulers.  In the incorporation of the offence of sodomy in the colonies, such was not preceded by any consultation with the local populace.”

Judge Leburu noted subsequent developments in Britain, culminating with the parliamentary committee headed by Lord Wolfenden, whose report recommending decriminalization was approved in the 1967 Sexual Offenses Act “which decriminalized same sex sexual intercourse,” noting the spread of decriminalization, either through legislation or judicial action, in countries which had at one time been British colonies, including South Africa and the United States.

“The repeal of the sodomy laws was greatly influenced, in large measure, by the inherent recognition of such laws as being discriminatory, invasive of personal dignity, privacy, autonomy, liberty and lastly, the absence of compelling public interest to intrude and regulate private sexual expression and intimacy between consenting adults,” wrote Leburu.

One defining characteristic of judicial decisions of major importance in British Commonwealth countries is the practice of extensive quotation from court opinions of other Commonwealth nations, and Leburu’s opinion is strewn with such quotations, including from the recent Supreme Court of India ruling striking down that nation’s sodomy law, which had also been imposed originally during British colonial rule.  The opinion also refers to the U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy sodomy laws in 2003, as well as rulings from South Africa and Canada.

The opinion decisively rejects narrow, literalistic constitutional interpretation, instead embracing the court’s role in developing constitutional interpretation for changing times.  “In construing the Constitution,” Leburu wrote, “I will accord and give meaning and interpretation which would render it effective.  The Constitution should thus be given a generous construction, which will not unjustifiably erode civil liberties.  A Constitution ought to be interpreted according to the imperatives of the prevailing socio and political context.”  He also insisted that the courts should “have regard to any relevant international treaty, agreement or convention,” and listed several that have been invoked by other courts in cases invalidating sodomy laws.

At the outset of his analysis, he rejected the Applicant’s argument that the statues were “void for vagueness,” as judicial interpretation over time had made clear which acts were prohibited.  However, on every other contention, he found that the Applicant had the better argument than the Government, finding valid claims under the right to privacy (which is explicitly protected in the Botswana Constitution) and constitutional guarantees of liberty, equality and dignity.  He referred to these guarantees as a “triumvirate” that “forms the core values of our fundamental rights, as tabulated and entrenched in Section 3 of the Constitution.”  He explained how the challenged laws violate each of these basic concepts.

In a phrase that was widely quoted in news reports about the opinion, Leburu wrote, “Sexual orientation is innate to a human being.  It is not a fashion statement or posture.  It is an important attribute of one’s personality and identity; hence all and sundry are entitled to complete autonomy over the most intimate decisions relating to personal life, including the choice of a partner.  The right to liberty therefore encompasses the right to sexual autonomy.”  His reference for this statement is to a South African Law Journal article from 1993 by Edwin Cameron, an out gay man who has served as a judge on South Africa’s Constitutional Court.  The opinion also quotes from writings of Michael Kirby, an out gay man who has served on Australia’s Supreme Court and also on Botswana’s Court of Appeal.

“By parity of reasoning and logic,” wrote Leburu, “the Applicant’s sexual orientation lies at the heart of his fundamental right to dignity.  It is his way of expressing his sexual feelings, by the only mode available to him. His dignity ought to be respected, unless lawfully restricted.”

Turning to the issue of discrimination, Leburu rejected the government’s argument that because the law was gender neutral and prohibited everybody from engaging in anal sex – the traditional interpretation of the “unnatural acts” language used in British colonial-era sodomy laws – it was not discriminatory.  Referring to arguments presented by LEGABIBO as amicus, Leburu wrote that “the nub and substance of the amicus case is that the provisions are discriminatory in effect, by denying him sexual expression and gratification, in the only way available to him, even if that way is denied to all.”  Heterosexuals have a legal sexual outlet, while homosexuals do not.

“It was further submitted,” he wrote, “that the word ‘sex’ in Section 3 of the Constitution should be generously and purposively interpreted to include ‘sexual orientation.’  On the basis of the formulated rules of constitutional construction or interpretation, I have no qualms whatsoever in determining that the word ‘sex’ in Section 3 thereof is generously wide enough to include and capture ‘sexual orientation,’ as I hereby determine.”  He referred to an earlier Court of Appeal ruling stating that the “enumerated grounds of discrimination” in the Constitution, which include “sex,” were “not hermetically sealed nor cast in stone.” This was because the framers of the Constitution intended to protect “all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment.”  That earlier decision set out a view of living constitutionalism, contrary to “static” constitutional meaning championed in the United States by Justice Clarence Thomas and the late Justice Antonin Scalia.

Furthermore, he wrote, “To buttress and fortify this amplification and expansion of the word ‘sex,’ our Parliament has, in its graceful and usual wisdom, recognized that there may be discrimination, at the workplace, on account of sexual orientation, as shown by the Employment (Amendment) Act No. 10 of 2010, which amendment made it unlawful to terminate employment on the grounds of, inter alia, sexual orientation and gender, per Section 23(d).”  Thus, ironically, Botswana made it illegal to discriminate because of sexual orientation nine years ago, without repealing the laws against gay sex.

“The two forms of discrimination — namely sex and sexual orientation — are associable signifiers of a similar scope and content,” he continued.  “The constitutional discrimination, based on sex, is of wider scope and application, where discrimination based on sexual orientation, in the Employment (Amendment) Act, is of a narrower campus.  ‘Sexual orientation’ is thus subset or component of ‘sex.’”  He cited a United Nations Human Rights Committee ruling condemning the sodomy law in the Australian state of Tasmania to support this point, ruling under the International Covenant on Civil and Political Rights which, Leburu observed, Botswana had ratified in 2000.  And, he accepted the argument that the facially neutral laws are discriminatory in effect, and thus unconstitutional since unjustified by the Government.

Referring to the Government’s arguments, he wrote, “There is no scintilla or iota of justification, advanced for the derogation [of rights] in question  The only answer placed at the fore is that the impugned sections are not discriminatory, but, a contrario, this court has found otherwise.  The Respondent’s semblance of justification, can best be described as bare assertions and/or speculations that sexual anal penetration is contrary to public morality or public interest,” but such was not sufficient to justify violating a fundamental right.

Leburu then examined the morality argument in the absence of expert testimony from the Government.  “Even if the Respondent’s public interest or morality justification was to be subject to the criterion of ‘reasonable and justifiable in an open democratic society,’” he wrote, “such justification does not pass constitutional muster. The test of what is reasonably justifiable in a democratic society, is an objective one.  There is nothing reasonable and justifiable by discriminating against fellow members of our diversified society.  The State has failed to single out the objective that is intended to be satisfied by the impugned provisions.”

Furthermore, he noted that maintaining these laws was inconsistent with goals that had been identified in a nation-building exercise, called Botswana National Vision 2016, which included to be “A Compassionate, Just and Caring Nation,” and aspiring to be “an Open, Democratic and Accountable Nation” and “A Moral and Tolerant Nation.”  “To discriminate against another segment of our society pollutes compassion,” he insisted.  “A democratic nation is one that embraces plurality, diversity, tolerance and open-mindedness.  Democracy itself functions, so long as the differences between groups do not impair a broad substrate of shared values.  Our shared values are as contained in our National Vision.  Furthermore, the task of laws is to bring about the maximum happiness of each individual, for the happiness of each will translate into happiness for all.”

The opinion continues in this vein of somewhat high-flown rhetoric for several pages, concluding that the unnatural sex provisions should be stricken, and that the gross indecency provision (which had customarily been used to punish people for engaging in oral sex) should be limited to public acts, the word “private” to be stricken from the provision.  The court also ordered that the Government pay the Applicant’s costs of the litigation.

The courtroom in Gabarone, the nation’s capital, was crowded with LGBTQ activists when the opinion was announced by Judge Leburu, leading to an exuberant celebration.  Among those congratulating Botswana was the United States Department of State.  According to a June 13 report by Agence France Presse English Wire, State Department spokeswoman Morgan Ortagus, using the preferred method of governmental communication during the Trump Administration, tweeted: “We are pleased by #Botswana’s High Court decision to decriminalize same-sex relationships – an historic moment in protecting human rights for all.  Congrats to the brave people who worked for this outcome.  We hope other countries follow Botswana’s example.”

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