11 June 2019

Botswana: Ruling to Decriminalise Same-Sex Relations a Landmark, Says UN Expert

Photo: LEGABIBO
The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) have won their Botswana High Court case targeting Section 164 of the Penal Code. They said the law denies people the right to associate and to express their sexuality.

Geneva — The ruling was made at the end of a court case challenging the constitutionality of parts of the Botswana Penal Code which criminalised same-sex sexual conduct between consenting adults, and imposed a maximum sentence of seven years' imprisonment.

"This landmark ruling sends a positive message to gay, lesbian and bisexual, trans and other gender-diverse people in Botswana, showing they are in a country in which their dignity and integrity are valued and effectively protected under the rule of law," said the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz.

"Criminalising homosexuality and other forms of sexual and gender diversity is one of the root causes of grave and pervasive human rights violations on the basis of sexual orientation and gender identity. It also violates international human rights law."

Madrigal-Borloz said that while Botswana's laws had not often been used to actively prosecute cases, their mere existence created an environment conducive to violence, discrimination, stigma and exclusion.

"I am profoundly encouraged by the High Court's findings, which evoke the principle of equality and the imperative of respecting all the elements that create a person's identity and their experience," the expert said.

"I have personally witnessed the tireless efforts of LEGABIBO (Lesbians, Gays and Bisexuals of Botswana) and other civil society organisations to promote and protect the equality and inclusion of gay, lesbian, trans and bisexual people in Botswana. Rulings like this are why civil society spaces must be defended and preserved. The work of human rights defenders is the fuel for change toward full respect for diversity and equality in all societies."

The Independent Expert noted that legal provisions banning homosexuality are often remnants of colonial laws.

"Countries around the world that still criminalise homosexuality and other forms of sexual orientation and gender identity must, without exception, take note of this recent advance in Botswana, which joins India and Angola in definitely abandoning this odious form of discrimination. All countries in which homosexuality or any other form of gender diversity remain criminalised must examine their legal frameworks in order to become fully compliant with international human rights law," the expert said.

ENDS

Mr. Victor Madrigal-Borloz (Costa Rica) assumed the role of UN Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity for a three year period starting on 1 January 2018. He serves as the Secretary-General of the International Rehabilitation Council for Torture Victims (IRCT), a global network of over 150 rehabilitation centres with the vision of full enjoyment of the right to rehabilitation for all victims of torture and ill treatment. A member of the UN Subcommittee on the Prevention of Torture from 2013 to 2016, Mr Madrigal-Borloz was Rapporteur on Reprisals and oversaw a draft policy on the torture and ill-treatment of LGBTI persons.

The Independent Experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council's independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

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