Sonke Gender Justice welcomes yesterday’s ruling by Botswana’s High Court which abolished colonial-era laws that criminalised homosexuality. Under the Botswana penal code, a person could face up to seven years imprisonment for same-sex relations.
The ruling is a significant victory for LGBTQ+ (Lesbian, gay, bisexual, transgender and queer) rights on the continent, where as many as 37 out of 54 African nations still criminalise same-sex sexual conduct.1 Notably, as many as four nations still enable the use of the death penalty as a punishment for homosexuality. The Botswana ruling arrives only weeks after a disappointing ruling in Kenya which upheld similar colonial-era laws that penalise same-sex acts.
In its ruling, the Botswana High Court noted that: “Sexual orientation is not a fashion statement. It’s an important attribute of one’s personality. All people are entitled to autonomy over their sexual expression.” The judgment is an important reminder that every person enjoys the rights to dignity, autonomy, privacy and freedom from discrimination regardless of their sexual orientation or gender identity.
It also serves as a reminder that LGBTQ+ rights are not “un-African”, but rather a necessary component of any democracy committed to the rule of law, equality and human rights.
Sonke urges other African nations which still have such laws to urgently reform them and to abolish draconian penalties targeted at the LGBTQ+ community.
While South Africa is widely regarded as having the most progressive laws on the continent in respect of LGBTQ+ rights, implementation of the principles of non-discrimination is lagging. Sonke notes the recent harmful treatment of Kenyan LGBTQ+ activist, George Barasa, by Department of Home Affairs officials where he has been tasked to “prove” his sexual orientation in order to claim asylum in South Africa.2
In Kenya, a warrant for Barasa’s arrest was issued in 2016 when his band, Art Attack, released Kenya’s ‘first gay music video’, which was subsequently banned for “promoting” homosexuality. After receiving various threats, Barasa fled the country and sought asylum in South Africa. Section 3 of South Africa’s Refugee Act provides that a person would quality for refugee status if “owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group […] and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it”.
Sonke condemns the maltreatment of LGBTQ+ migrants and refugees and calls for an immediate end to invasive and inhumane asylum processes of this nature.
Homophobia and Xenophobia must be condemned in all their forms and have no place in our democracy.
Sonke stands in solidarity with Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), an organization that acted as a friend of the court in the Botswana ruling as well as all other members of civil society across the continent who fight tirelessly for the rights to dignity and equality of the LGBTQ+ community.