Botswana: Draft constitutional changes include intersex rights – but other challenges remain
Same-sex relationships remain criminalised in the majority of countries in Africa. Yet recent years have seen a surge of new policy efforts in several regions to stifle members of the LGBTQIA+ community and allies. During Pride Month 2024, ALT Advisory and Power and Associates are spotlighting some recent law and policy developments on the continent – both positive and negative – in allyship with members of LGBTQIA+ communities. This is the second in our Pride 2024 Series.
In March 2024, Kabo Morawaeng, Botswana’s Minister for State President, introduced a constitutional amendment bill which includes new protection against discrimination for intersex persons and people with disabilities in the Constitution. (The Constitution (Amendment) Bill, 2024, follows a Commission-led review process of the Constitution, and introduces a range of other amendments, including restricting retired presidents from holding other high offices, barring dual citizens from election to the National Assembly, and changing the make-up of the Judicial Services Commission.)
The relevant provision of the Bill would substitute section 15(3) of the Constitution, providing the grounds for protection from discrimination on the basis of a person’s:
..race, tribe, place of origin, political opinions, colour, creed, disability or sex (including intersex)…
During further deliberations on the bill in June 2024, the Minister of Labour and Home Affairs noted the importance of legislators differentiating between “intersex” and “same-sex” and how the two should not be used interchangeably.
While civic groups have raised considerable concerns with the broader constitutional review process, the proposed protection for intersex persons suggests a positive momentum towards better LGBTQI+ protections in Botswana. It follows the 2021 landmark decision of Attorney General of Botswana v Letsweletse Motshidiemang (civil appeal no. CACGB 157-19), in which the Court of Appeal upheld a High Court judgment decriminalising same-sex relations. The court found that provisions of the Penal Code prohibiting consensual same-sex relations were unconstitutional and amount to a breach of the rights to liberty, dignity, privacy, and equality. The Penal Code carried a maximum sentence of seven years. Further, the Court of Appeal endorsed the view that the definition of “sex” as a prohibited grounds for discrimination in section 15 of the Constitution should be read to include both “sexual orientation” and “gender identity.”
Unfortunately, the broader constitutional amendment process has drawn opposition from civil society groups, with the Botswana Council of Non-Governmental Organisations (BONGO) petitioning the National Assembly to withdraw the Bill, on grounds that are not related to its provisions relating to intersex persons. Rather, the petitioners express deep concern that other constitutional changes in the Bill violate the separation of powers and that the process itself has lacked transparency and meaningful participation. (The full text of the Bill has not been widely available to the public.)
The Bill is scheduled for a third reading in Parliament in September 2024, and would require a two-thirds majority to pass. Batswana are scheduled to head to the polls for a general election in October 2024.
The legal status of LGBTQIA rights in Botswana
In general, Botswana is considered to be heading towards better protections for LGBTQIA+ rights, comparative to other countries in Africa.
Unfortunately, same-sex marriage is not recognised in Botswana. There have, however, been several positive developments in the last decade. In 2010, Botswana became one of the few countries in the region to amend its Employment Act to prohibit discrimination on the basis of sexual orientation. In 2016, in Attorney General of Botswana v Rammoage and 19 Others (civil appeal no. CACGB 128-14), the Court of Appeal ruled that LEGABIBO could be formally registered as a society, marking a positive step in upholding freedom of expression and association for the LGBTQIA+ community. In 2017, the High Court ruled in favour of a transgender man, ordering the Registrar of National Registration to change the gender marker from female to male in the applicant’s official documentation.
Shortly after the Motshidiemang judgment was handed down, President Mokgweetsi Masisi assured members of the LGBTQIA+ community that the government would respect the court’s decision and enhance inclusion.
CSOs have undertaken much of the work of conscientising members of the general public about LGBTQIA+ rights, including intersex rights. For example, the Rainbow Identity Association recently engaged with traditional leaders about LGBTQIA+ rights given their role in influencing attitudinal responses in their communities as well as their political influence.
Afrobarometer findings suggest a slow upwards trend in acceptance of LGBTQI+ persons in Botswana, with 50% of respondents in 2021 saying they would either approve or not care if they had a LGBTQIA+ neighbour, up from 43% in 2014.
There is significant room for further progress. As the Court noted in Rammoage, “Members of the gay, lesbian, and transgender community, although no doubt a small minority, […] form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progress state, to the constitutional protection of their dignity.”
In-country organisations and networks
For further resources and information, here are a few of the organisations that protect LGBTQIA+ rights in Botswana:
- LEGABIBO is an NGO seeking to protect the rights of LGBTQIA+ persons, primarily focusing on community access to clinic health services. Further, LEGABIBO offers free consultations with human rights lawyers and paralegals associated with the organisation.
- Success Capital Organisation is a grassroots youth-led LGBTQIA+ body which seeks to strengthen human rights using three pillars. First, participatory decolonised knowledge production; second, peer-to-peer systemic knowledge sharing; and third, supporting civic action and participation.
Further information
- The Constitution (Amendment) Bill, 2024, is accessible here.
- The Motshidiemang appeal judgment is accessible here.
- End GBV Africa, an ALT Special Project, maps law and policy trends relating to GBV, including LGBTQI+ rights: endgbv.africa
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].