06 Aug 2023

The Penal Code (Amendment) Bill,  No. 29 of 2022 has been deferred for a later date.

Minister of Justice, Mr Machana Shamukuni informed Parliament that he deferred the bill to allow for intensive interrogation of the constitutional review of the issues raised with his ministry regarding the bill.

He said since the publication of the bill in October 2022 various provisions had been advanced for and against the bill in public forums. 

“This bears testimony to the fact that Botswana is a constitutional democracy,” he said. 

The minister said he sought to satisfy himself that the views and concerns of all stakeholders pertaining to the interpretation of the Constitution were considered, and that the provisions of the Revision of Laws Act had been thoroughly interrogated and made clear. He said government had been consistent with respecting the separation of powers principle enshrined in the Constitution as well as implementing court decisions.

The constitutional issues that had been raised with his ministry, Mr Shamukuni said, where with regard to Section 86 of the Constitution as read with Section 87 and the Interpretation Act. 

Another constitutional issue, he said, was raised by the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) which had requested that he withdraw the bill on the basis that where the provisions of an act had been struck down by a court of law, Parliament was not constitutionally empowered to debate whether or not to delete the provisions.

“LEGABIBO argues that the provisions should be removed from the Penal Code by the Attorney General, exercising powers under the Revision of the Laws Act,” he said.

He noted that Section 86 of the Constitution provided that Parliament shall make laws for the peace, order and good governance of Botswana while Section 87 provided that the powers of Parliament to make laws shall be exercised by bills passed by the National Assembly.

Giving a brief background, Mr Shamukuni explained that in 2022 the Court of Appeal in the landmark case of Attorney General versus Letsweletse Motshidiemang and another declared Section 164 (a) and (c) of the Penal Code unconstitutional.

He added that the High Court of Botswana declared that the time was right to decriminalise homosexuality and that sexual orientation was innate to an individual and that the criminalisation of same sex sexual conduct infringed upon the rights to liberty, dignity and privacy and constituted discrimination.

Additionally, he said the High Court also declared that there was no public purpose in continuing the criminalisation and that there was no justification for infringing upon those rights.

Seeking to recriminalise homosexuality, he said, the state filed an appeal against the High Court ruling in July 2019, but that the Court of Appeal ruled that Section 164 (a) and (c) of the Penal Code were ultra vires Sections 3, 9 and 15 of the Constitution and were accordingly struck down in November 2021.

The specific sections of the Constitution which informed the court's decision, Minister Shamukuni said, were Section 3 which laid down the fundamental rights and freedoms  of every person in Botswana, Section 9 which protects the right to privacy and Section 15 which prohibits discriminatory laws.

The objective of the bill is to amend the Penal Code by deleting Section 164 (a) and (c) of the Penal Code. ends