In 2019, Botswana’s High Court made a ruling decriminalising same-sex relationships following a constitutionality challenge launched by LQBTIQIA+ activists. Following the High Court ruling, the government filed an appeal, which was dismissed by the Court of Appeal (the Court) on 29 November 2021. This has been hailed as a victory by campaigners.
The Court found that the criminalisation of same-sex relationships impaired the rights to liberty, security of the person, and equality of LQBTIQIA+ individuals. Prior to this ruling, same-sex marriages in Botswana were punishable by up to seven years imprisonment under the country’s Penal Code.
Acting as an amicus curiae in the matter, the Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO), led evidence regarding the harm and stigma perpetuated by the criminalisation of same-sex relationships. Additionally, this law impeded LQBTIQIA+ individuals from accessing essential health services, which undermined the nation’s HIV/AIDS prevention efforts.
Judge Iain Kirby handed down the unanimous judgment wherein the Court noted that the applicable provisions of the Penal Code “…have been rendered unconstitutional by the march of time and the change of circumstances”. The Court further stated that the continued criminalisation of same-sex relationships was not in the public interest.
The judgment means Botswana joins a handful of countries on the continent to decriminalise same-sex relationships. Others include Angola, Lesotho, Mozambique, and the Republic of Seychelles. South Africa is the only African country to legalise same-sex marriage.
The Court of Appeal’s Judgement may be accessed here.
A press statement issued by LEGABIO may be accessed here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].