Same-sex relationships in Botswana: Motshidiemang

Not much to do with religion, but an interesting ruling…

On 11 June, in Motshidiemang v Attorney General [2019] MAHGB-000591 16, the Botswana High Court held that the criminalisation of sexual relations between consenting adults of the same sex was unconstitutional. Tafa, Leburu and Dube JJ concluded that ss.164(a), 164(c), 165 and 167 of the Botswana Penal Code violated the constitutional rights of lesbian, gay, bisexual and transgender persons to dignity, liberty, privacy and equality. The Court began from the proposition that sexual relations between consenting adults in private were none of the law’s business:

“What regulatory joy and solace are derived by the law, when it proscribes and criminalises 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 the effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights?” [3].

Further:

“As a nation, there is an ardent need to respect our diversity and plurality by being tolerant to minority views and opinions. We need not be too prescriptive and try to cajole people into becoming who and what they are not. Personal autonomy on matters of sexual preference and choice must therefore be respected. Any criminalisation of love or finding fulfilment in love dilutes compassion and tolerance” [141].

“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 choice of a partner. The right to liberty therefore encompasses the right to sexual autonomy” [142: emphasis added].

“It is trite that sexual intercourse is not just for purposes of procreation. It constitutes an expression of love and intimacy” [150]. It is trite that sexual intercourse is not just for purposes of procreation. It constitutes an expression of love and intimacy” [150].

The impugned sections … deny the applicant the right to sexual expression in the only way available to him. Such a denial and criminalization goes to the core of his worth as a human being. Put differently, it violates his inherent dignity and self-worth. All human beings are born free and equal in dignity. See Articles 1, 2 and 3 of the United Nations Universal Declaration of Human Rights. Dignity acts as a core of a diverse but interrelated body of inalienable rights. Human dignity refers to the minimum dignity and belongs to every human being qua human. It does not admit of any degrees. It is equal for all humans” [151].

The Court declared ss.164(a), 164(c) and 165 of the Penal Code, which prohibit “carnal knowledge” of a person of the same sex as “against the order of nature” and punishable by seven years’ imprisonment, to be ultra vires ss.3, 9 and 15 of the Constitution of Botswana and struck them down [228a]. In relation to s.167, the Court held that the offence of gross indecency was unconstitutional to the extent that it applied to acts committed in private and, accordingly, removed the word “private” from the provision in s.167 [228b].

[With thanks to Verfassungsblog for locating the judgment.]

Cite this article as: Frank Cranmer, "Same-sex relationships in Botswana: Motshidiemang" in Law & Religion UK, 17 June 2019, https://lawandreligionuk.com/2019/06/17/same-sex-relationships-in-botswana-motshidiemang/

 

2 thoughts on “Same-sex relationships in Botswana: Motshidiemang

  1. Pingback: Anglican influence in Botswana’s decriminalisation of same-sex relationships – Thinking Anglicans

  2. Pingback: Law and religion round-up – 7th July | Law & Religion UK

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