29 Nov 2021

Outgoing Judge President of the Court of Appeal, Justice Ian Kirby has dismissed an appeal by the state which sought to uphold the decriminalisation of same sex relationships.

The landmark judgement delivered on Monday ruled that criminalisation of consensual same-sex activities violated constitutional rights of gays, lesbians, bisexuals and transgender people.

The state was appealing the High Court judgement of 2019 where gay man, Letsweletse Motshidiemang had won against decriminalisation of same sex.

Dismissing government appeal with costs, Justice Kirby said the High Court was correct to strike down Sections 164 (a), 164 (b) and 165 of the penal code (Cap 08:01) as they breached the fundamental rights to privacy.

“Sections 164 (a) and 164 (c) of the penal code (Cap 08:01), Laws of Botswana are hereby declared ultra vires sections 3, 9 and 15 of the constitution and are accordingly struck down. At present, they serve only to stigmatise gay men unnecessarily, which has a harmful effect on them, and as far as I am aware there has never been any prosecution of a woman or even any thought of doing so, for the offence of sodomy,” he said.

Justice Kirby further said the two sections have outlived their usefulness and served only to allow law enforcement agents and others to become key-hole peepers and intruders into the private space of citizens, which he said was neither in the public interest nor in the nature of Batswana.

The outgoing Judge President of the Court of Appeal, noted that many countries had recognized the right to same sex, and had international instruments to which Botswana was a party to, such as the Universal Declaration of Human Rights of the United Nations and the International Covenant on the Civil and Political rights.

The state had argued that the lower court misdirected itself in ordering the striking down of sections 164 (a), 164 (b) and 165 of the penal code (cap 08:01).

It said the lower court decision was not made for the good order and governance of the country.

The state among others had also argued that striking off the sections would among others interfere with the applicant’s fundamental right not to be subjected to inhuman and degrading treatment.

The state was represented by Advocate Dr Sidney Pilane, attorney while Mrs Precious Ramaja appeared for the respondent, Mr Motshidiemang while Mr Tshiamo Rantao was admitted as a friend of the court.

The CoA bench was made of Chief Justice Terrence Rannowane, Justices Kirby, Monametsi Gaongalelwe, Isaac Lesetedi and Mercy Garekwe.

Mr Rantao explained outside the court, that the judgment was not a guarantee to same sex marriages, as the court was not called to deliberate on the matter.

However, he said should the need be, the judgment would in the future be used to advance for same sex marriages. ENDS