Almost five months after Angola adopted a new penal code that decriminalizes homosexuality, another African country, Botswana, has followed suit, discarding its colonial-era law that frowns on consensual same-sex relations.
In a landmark ruling on Tuesday, the country’s High Court said that the legislation was discriminatory, unconstitutional and against the public interest, a report by the CNN said.
The unanimous ruling, which has been celebrated by activists and the lesbian, gay, bisexual and transgender (LGBT) community in Botswana, also indicated that penalizing people for who they are is disrespectful.
It added that the right to privacy included sexual orientation, “which is innate and not a fashion statement,” reports the Independent.
Under section 164 of Botswana’s Penal Code, “carnal knowledge of any person against the order of nature,” was an offence that could end one up to seven years in prison.
“Section 167 made “acts of gross indecency” – whether in public or private – a punishable offence, with up to two years in prison,” the CNN said.
The case was filed in March 2018 by Letsweletse Motshidiemang, a 21-year-old gay student at the University of Botswana, who argued that criminalization of same-sex sexual activity violates fundamental rights and freedom of liberty of LGBT people, as well as, their access to basic social services.
“Botswana is a diverse society and the constitution protects the freedoms and dignity of all persons in Botswana, regardless of whether you are gay, lesbian, bisexual, transgender or intersex,” said Anna Mmolai-Chalmers, chief executive officer of Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), an organization which supported the petitioner in the case.
The latest ruling contrasts with Kenya’s high court’s decision last month that dashed hopes that the country’s laws on gay sex would be overturned.
Although some African countries are slowly accepting same-sex marriages, many are still very categorical in their denunciation of the idea. Some have even made it a capital offence punishable by death – Mauritania, Sudan, southern Somalia and northern Nigeria.
Many members of the LGBT community in these countries have been forced to hide their sexuality while others have fled their homes for fear of being attacked.
In Uganda, for instance, same-sex relationships have been illegal since British colonial rule, and in neighbouring Tanzania, the situation is no different.
As political landscapes continue to change across the continent, new ideologies are slowly taking shape and societies are becoming more accepting as far as embracing same-sex relationships is concerned.
In January, this year, Angola shed the divisive “vices against nature” provision in its law, widely interpreted to be a ban on homosexual conduct.
The changes were made on January 23 when the oil-rich southern African country parliament adopted its first new penal code since it gained independence in 1975 and removed the “vices against nature” provision that it inherited from its Portuguese colonizers.
There had been no known prosecutions under the law, but the “vices against nature” provision tended to place the lives of LGBT people in Angola under scrutiny.
In 2015, a Kenyan court ruled in favour of the National Gay and Lesbian Human Rights Commission – a non-governmental organization supporting the LGBT community – which had moved to court compel the Kenyan government to recognize it as a legal entity. In its ruling, the court argued that refusing to register the commission was an infringement of the right of association for gay people.
In Uganda, the controversial 2014 law criminalizing homosexuality has since been overturned, although the constitution still doesn’t recognize same-sex relationships.
In South Africa, LGBT people enjoy constitutional and statutory protection from discrimination at work, school, and places of worship, as well as, in provision of goods and services.
A world map released by Australian insurance company Travel Insurance Direct in March 2018 identified countries and territories according to how tolerant national attitudes were towards LBGTI couples.
The map is shaded from red to purple which respectively indicates countries with illegal or intolerant attitudes towards homosexuality and countries where same-sex marriage has been legalised.
Homosexuality is illegal in these countries:
In these countries, there is no law against homosexuality but there is high intolerance:
Central African Republic
In these countries homosexuality is legal but there are no other protections:
Same-sex marriage is allowed in this country: