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The High Court of Botswana has declared unconstitutional the provisions of its penal code which criminalises homosexuality and has struck them down. The ruling is on a petition filed by Letsweletse Motshidiemang who had contended that these provisions discriminate against homosexuals and that it interferes with their fundamental right not to be subjected to inhuman and degrading treatment or other such treatment.

The High Court bench comprising of Judges M. Leburu, AB Tafa and J.Dube also read down Section 167 of the Code Any regulation of conduct deemed indecent, done in private between consenting adults, is a violation of the constitutional right to privacy and liberty. Sections 164 (a) and (c) and 165 of the Penal Code criminalised sexual intercourse and/or attempt thereof between persons of the same sex and/or gender and was punishable with imprisonment up to seven years. Section 167 proscribed both public and private gross indecency.

The court said that criminalising consensual same sex in private, between adults is not in the public interest and the same oppress a minority and then target and mark them for an innate attribute that they have no control over and which they are singularly unable to change. Consensual sex conduct, per anus, in my view, is merely a variety of human sexuality, said judge Leburu, speaking for the bench. The court also said that these provisions impairs the right to express his sexuality in private, with his preferred adult partner.

The judgment also refers to observations made by Justice Indu Malhotra and Justice DY Chandrachud in Navtej Singh Johar, in which Section 377 of the Indian Penal Code, dealing with sodomy laws, was struck down as unconstitutional.


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