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On a bright winter day in Botswana’s capital, a panel of three High Court judges unanimously struck down a colonial-era law criminalizing homosexuality, becoming the second court in African history to do so.
“A democratic nation is one that embraces tolerance, diversity, and open-mindedness,” said Judge Michael Leburu, reading from the court’s ruling Tuesday. “We have determined that it is not the business of the law to regulate private consensual sexual encounters” between adults.
Botswana, like more than half of the countries that criminalize homosexuality, inherited its law from Victorian England. Momentum has been building to repeal those laws, arguing that they were imposed on societies without consultation.
For many supporters of decriminalization, the idea that their culture was against homosexuality was always a simplistic one. Though their society contained elements who believed homosexuality was a sin, it also contained many people who – whether or not they’d heard of a thing called “gay rights” – had loved and accepted them as they were.
“I was never taught to hate myself,” says Letsweletse Motshidiemang, who brought the lawsuit as a college student.
“I did this so people like me don’t need to feel like who we are is a crime.”
When Letsweletse Motshidiemang was growing up in a village in northern Botswana, there wasn't exactly a name for what he was. Certainly no one ever used words like gay, or queer, or LGBTQ. In fact, no one called him much of anything at all. And in that silence, he says, was a quiet acceptance. “People knew I was different, but I was surrounded by people who loved me,” he says. “I was never taught to hate myself.”
So it wasn’t they who first suggested he might have to change who he was. “It was the laws,” he says. Men like him, he learned as a teenager, couldn’t get married to other men. They couldn’t start families. Their very existence, in the eyes of the police and the courts and the constitution in Botswana, was a crime.
And so in 2016, when he was 21, Mr. Motshidiemang approached a law professor at the University of Botswana, where he was a student, and asked for his help to challenge Botswana’s “carnal knowledge” law, a colonial-era prohibition on gay sex.
At the time, he wasn’t an activist. He’d never been to pride parades or even had a close gay friend. He was a bookish literature student who dreamed of moving home after graduation to work as a primary school teacher. He had nothing behind him but the conviction that the law was wrong, and the way he wanted to live was right.
“I’m just someone who takes pride in who he is,” he says. “I did this so people like me don’t need to feel like who we are is a crime.”
And three years later, on a bright winter day in Botswana’s capital, a panel of three High Court judges unanimously affirmed that belief.
“A democratic nation is one that embraces tolerance, diversity, and open-mindedness,” said Judge Michael Leburu, reading from the court’s ruling Tuesday morning. “We have determined that it is not the business of the law to regulate private consensual sexual encounters” between adults.
Ten miles away, in the one-room brick house where he lives on the fringes of Gaborone, Mr. Motshidiemang, now 24, began to weep. “Of course I wanted to win, but I didn’t expect it,” he said through tears on the phone. “I did it just because I felt it was something I had to do for my community.”
And for activists who gathered at the courthouse and those watching from around the continent, the moment was bigger still. For only the second time in history, an African court had struck down a national law criminalizing homosexuality, cracking open a door for other countries to follow their lead. (South Africa’s Constitutional Court decriminalized gay sex in 1998.)
Legacy of colonial era?
Botswana, like more than half of the 70-some countries that criminalize homosexuality worldwide, inherited its law from the British Empire. In recent years, momentum has been building globally to repeal those laws, which prohibit sex “against the order of nature,” arguing that they were imposed without consultation in societies that had sometimes made space for a range of sexualities in the past. And in cultures where many opponents of LGBT rights see them as “Western imports,” having regional precedents is especially key, legal activists say.
“We’ve seen an increasing trend of countries drawing on other countries in their region,” or in other Commonwealth countries, says Neela Ghoshal, senior researcher in the LGBT Rights program at Human Rights Watch. “So I think this ruling is going to inspire activists around the continent and in other parts of the world as well. The language of the ruling in Botswana is so clear. It makes really crystal clear that people’s private sexual behavior and morality is not the business of the state.”
Last year, India struck down its own “order of nature” law, with the judges writing that it had been “irrational, indefensible and manifestly arbitrary” and that “history owes an apology to members of the community for the delay in ensuring their rights.”
“We’ve been stuck with these provisions when [the British] have long discarded them,” says Tshiamo Rantao, the lawyer for the Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), an advocacy group that joined the case as a friend of the court. He notes that while Botswana’s laws punish homosexuality with up to seven years in prison, it was decriminalized in England and Wales half a century ago.
But last month, a court closer to home, in Kenya, voted unanimously to uphold that country’s prohibition on gay sex, leading many to worry that momentum for global repeal had been scuttled.
In that case, indeed, the Kenyan High Court cited a 2003 decision from Botswana, Kanane v. The State, which found that “the time has not yet arrived to decriminalize homosexual practices.”
“Gay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution,” the Botswana court explained at the time.
On Tuesday, however, the three-judge panel returned to that argument, and this time, found it lacking.
“As society changes, the law must evolve,” explained Judge Leburu, speaking on behalf of himself, Abednico Tafa, and Jennifer Dube, the three judges who heard the case. The law in Botswana, he said, was a “British import” and had been developed “without consultation of local peoples.”
It’s “about time Botswana sheds this colonial legacy and interprets its own humanity,” says Tshepo Ricki Kgositau, a transgender woman who in 2017 successfully challenged at this same court to have the gender marker on her driver’s license changed from male to female.
Ms. Kgositau’s case, indeed, was part of a wider strategy of LGBT rights groups here to incrementally challenge discriminatory laws in order to create precedent.
“We had to set the courts up to change their minds,” says Anneke Meerkotter, litigation director for the Southern African Law Centre, which provided legal support to LEGABIBO. “When you rush to court and the court isn’t ready, it can actually set you back years in your fight.”
The case in Botswana is of particular significance for African legal activists, who have long faced the accusation that homosexuality and its allies are an imported Western threat to local values.
“As things stand, Botswana is being forced to abandon its moral values. The courts should be conservative and measured,” explained Sydney Pilane, the lawyer for the state, in a hearing earlier this year, arguing that people in Botswana had always opposed homosexuality.
But in Tuesday’s case, the judges were unequivocal. “Cultural practice cannot justify any violation of human rights,” said Judge Leburu.
For many supporters of decriminalization, including Mr. Motshidiemang, the idea that their culture was against homosexuality was a simplistic one, anyway. Many people have long loved and accepted them, whether or not they’d heard of a thing called “gay rights.”
“It’s not that most people in this country hate us,” Mr. Motshidiemang says. “It’s just that the people who hate us are very loud.”
What comes next?
No sooner had the case concluded than many began to ask what would come next. Would Botswana follow South Africa’s lead and legalize gay marriage? Would there be backlash, now that the law had jumped out in front of public opinion? (A 2016 Afrobarometer poll showed that only 43% of people in Botswana “are not opposed to having homosexual neighbors.”)
“We won’t fool ourselves. We know a change of law doesn’t mean the end of discrimination,” says Anna Mmolai-Chalmers, who heads LEGABIBO, the gay rights group. “But the law also has power.”
Around her, on the steps of the High Court, supporters draped in rainbow flags clung to each other, giddily posing for selfies and crying.
Soon, they say, the state will likely bring an appeal, challenging their victory. There may be another day in court, and likely more after that, too.
But for today, for now, what they’d done felt like enough. They had won.