Botswana Backtracking? - Botswana’s Government Appealing Pro-LGBTQ+ Ruling a Leap in the Wrong Direction.
By Neo Sithole
In June the High Court of Botswana overturned laws that for decades had criminalised consensual same-sex relations. The ruling has been praised in as a victory for the LGBTQ+ community internationally as well as step in the right direction for recognising the basic right of people to freely take part in their sexuality, enter consensual sex with whomever they desire regardless of sexual orientation.
In a continent where thirty-two of the fifty-four countries still have laws that make criminal consensual same-sex relations the ruling by Botswana’s high court is against the tide especially as the ruling came after the high court in Kenya upheld laws against same-sex conduct in May.
However, in what is unfortunately not a surprising move, Botswana’s government looks to appeal the ruling made the high court.
The punt to have the pro-same-sex ruling removed by the government bring in a number of conversations around same-sex conduct in the Africa continent and why African societies are supposedly so against homosexual relations as well as the failure of governments to enforce the ‘will of the people’ and why ruling is not only a meaningful win for LGBTQ+ peoples, but also building block for the realisation of modern, decolonised, inclusive African communities.
Most of Botswana’s penal code dates to the 1960s when it was still a British colony called Bechuanaland, the particular code criminalising same-sex interactions is from 1965. Without getting into conversations around the continued use of non-indigenous laws as a foundation for ‘post-colonial’ legal systems and laws, the want of the government to revive an outdated and invasive, and colonial law is more than regressive.
Homosexuality in African societies, and the almost if not guaranteed homophobia is another issue pillar that the governments intent to challenge the ruling leans on. When the case was brought before the court, a lawyer for the government argued that the law should not be overturned because it reflects the values of Botswana’s society, and pressed the challengers to provide evidence that those values had changed.
In a global environment where the values of African societies are rapidly being eroded by non-indigenous norms government intervention with the intention of defending African societal values is welcomed and applauded. In this case, however, arguing the reflection of societal value is flawed.
In what is now basic decolonial knowledge several values that African societies now follow and understand as their own were brutally installed and stem almost exclusively from Christian ethics. Homosexuality as ‘unnatural’ is one such value, right up there with patriarchy demonising indigenous forms of spirituality. Another side to this is the fact that historically indigenous African societal value was more interested in allowing space for individuals to realise themselves through their communities and less concerned with policing bodies. Ruling for same-sex relations to be legalised has nothing to do with showing how values have changed but speak to using the law to correct exclusionary and homophobic values.
The intent to appeal is also a failure of Botswana’s government to respect, protect and represent all people in Botswana. Being a multiparty state aside, any government should do what is best for their citizens, including minority groups regardless of whether defending minority rights is comfortable for those in office. Upholding the dignity, privacy and liberty of citizens must remain the core function of any government.
The ruling made by the High Court pushes Botswana into space where, by law, people can fully exist and claim the rights accorded to them without having to limit facets of their being. While this does not immediately translate to acceptance by broader society seeing as widespread acceptance takes the time it does induce societal tolerance of minority groups, as well as respect.