Decriminalising same sex conduct in Africa – Part II

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Decriminalising same sex conduct in Africa – Part II

Kari Mugo

19 Jun 2019

6min min read
  • Human rights
  • Constitutional law

Read Part I here.


hen a three-judge bench of Kenya’s High Court delivered its decision to uphold the criminalisation of same sex relations in the country in May, the Court referenced a 2003 decision from Botswana’s Court of Appeal. Foreign jurisprudence has long been used by courts when hearing matters previously unadjudicated in their jurisdictions. In fact, both sides of Kenya’s decriminalisation petition cited the 2003 Botswana decision in their submissions. One side asked that the ruling be treated as a guiding tool for the handling of matters related to sexual orientation in the country. The other argued that Kenya’s 2010 Constitution provided stronger protections than that of Botswana’s, which dates back to 1966, and so the 2003 ruling could not be used in Kenya. 

In Kanane v State, a gay man, Utjiwa Kanane, appeared before the Court of Appeal to challenge the decision of a lower court to charge him under Section 164(c) and 167 of the Penal Code. Kanane had been arrested for engaging in sexual conduct with another man. His co-accused, a British tourist, pled guilty, paid a fine, and left the country. For Kanane, a Motswana, the crimes he was charged with each carried a maximum sentence of seven years imprisonment. If found guilty, he could face up to 14 years in prison. Kanane pled not guilty, arguing against the constitutionality of Section 164(c) and 167. A High Court ruled against him and Kanane appealed, resulting in the 2003 ruling cited in Kenya. This ruling found that, “gay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution”.

According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA)'s 2019 report on state sponsored homophobia, 70 countries (excluding Botswana) currently criminalise same-sex relationships. Of these, 32 are in Africa, and many are former British colonies, including Botswana and Kenya, who inherited their buggery laws. This point is not lost on many LGBTI rights activists across the continent, who continue to fight the myth that homosexuality is un-African. Instead, they argue, the laws criminalising same sex relationships are what is un-African. 

"70 countries currently criminalise same-sex relationships. Of these, 32 are in Africa..."

In early June, less than three weeks after Kenya’s disappointing ruling, a bench in Botswana agreed, unanimously ruling in favor of decriminalisation of same sex relations. Homosexuality, it said, was not un-African, but rather, “just another form of sexuality that had been suppressed for years”.

“Criminalising consensual same sex in private, between adults is not in the public interest. Such criminalisation, it has been shown… disproportionally affects the lives and dignity of LGBT persons. It perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”, the Court added. 

In Kenya, petitioners and activists welcomed the decision. The High Court in Kenya had clearly clung to the 2003 ruling in Kanane v State, saying that the majority of Kenyans did not support same sex relationships, warranting the limitation of rights when it came to LGBTI individuals. In Botswana, it appears that a lot has changed in the last 16 years.

“Our responsibility was to ensure that we unearth all the evidence that shows Botswana has moved from the 2003 environment. We had to show that all three arms of the government were ready,” says Caine Youngman, Policy and Legal Advocacy Manager at Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), the first LGBTI rights organisation in Botswana. LEGABIBO served as Amicus Curiae (a friend of the Court) in the case brought by Letsweletse Motshidiemang, a young gay man. 

Sections of the Penal Code criminalising consensual same sex between men, Motshidiemang told the court, violated his right to freedom of expression, liberty, and privacy. Rebutting the 2003 Court of Appeal ruling that the laws in question did not discriminate solely against LGBTI people, Motshidiemang contended that their “effect was discriminatory,” in that, “they perpetuated negative stigma against homosexuals.”

LEGABIBO’s role was to present evidence backing Motshidiemang’s claims. “We attached expert evidence that demonstrated why this law wasn’t good for Botswana, and showed that this was the time to make changes,” Youngman told Africa Portal. 

"Adding credence to LEGABIBO’s claim was the fact that in recent years, Botswana’s LGBTI community has received support from the country’s highest office."

Adding credence to LEGABIBO’s claim was the fact that in recent years, Botswana’s LGBTI community has received support from the country’s highest office. Not only did former President Festus Mogae express his support for LGBTI rights, but so has sitting President Mokgweetsi Masisi. 

In November 2018, speaking at a campaign to raise awareness about violence against girls and women, President Masisi acknowledged the discrimination LGBTI individuals face saying, “They deserve to have their rights protected”.

“He was just a couple of months into office,” Youngman says. “This was ahead of elections [in 2019]. It was a brave thing to be talking about LGBT rights before an election. For him to say that it’s time for LGBT people to be protected was huge,” and something that the judges in Motshidiemang’s case could not ignore.

Further, as Youngman told Africa Portal, when the Botswana legislature amended its Employment Act in 2010, it included provisions for the inclusion of sexual orientation as a protected class, signaling an important shift within government. Likewise, LEGABIBO pointed to Ministry of Health directives identifying men who have sex with men (MSM) as a group that faced increasing stigma in accessing healthcare. LEGABIBO also drew the Court’s attention to a 2016 ruling in its favour, in which the courts upheld its right to register and operate as a nonprofit. 

The similarity between the cases before the Batswana and Kenyan Courts in this regard is staggering. In Kenya, the Kenya Legal and Ethical Network on HIV/AIDS (KELIN), enjoined as Amicus Curiae to Petition 234 of 2016, had “placed in evidence government policies that admit this law [Section 162 and 165] is a health rights violation and a barrier to MSM accessing HIV services.” The National Gay and Lesbian Human Rights Commission, which supported the challenge, had similarly just won its second victory at the Court of Appeal in March, affirming a lower court ruling allowing for the registration of the organisation with the NGO Coordination Board.

“In addition, there were many other research documents submitted,” Youngman concludes. One of these documents is the 1957 Wolfenden Report, examining the effect of criminalisation of homosexuality in Britain as a result of buggery laws. The reports concluding recommendation: “homosexual behaviour between consenting adults in private should no longer be considered a criminal offence.”

“Sexual orientation is innate to a human being. It is not a fashion statement or posture. It is an important attribute of one’s personality and identity."

Reviewing the evidence before it, in an unanimous ruling, the Court affirmed, “It is the decision of this Court that Sections 164(a); 164(c) and 165 of the Penal Code are declared ultra vires the Constitution, in that they violate Section 3 (liberty, privacy and dignity); Section 9 (privacy) and Section 15 (discrimination).”

“It was a strong statement when the court said ‘rights to privacy extend to ones right on who they choose as their partner’ - saying that the state has no place deciding in someone’s partner,” Youngman says. 

There are numerous salient points like this to be found in its ruling. Enumerating on its understanding of sexual orientation, the Court said, “Sexual orientation is innate to a human being. It is not a fashion statement or posture. It is an important attribute of one’s personality and identity. On its vision for the role of government in the private lives of citizens, it stated, “As long as the applicant displayed affection, in private and consensually with another man, such conduct was not, injurious to public decency and morality.” Lastly, on its idealisation of Batswana society: “There is nothing reasonable and justifiable by discriminating against fellow members of our society.” The State, it said, “had a duty to uphold the fundamental human rights of every person and to promote tolerance, acceptance and diversity within the constitutional democracy.”

Speaking to Africa Portal, Horesia, a Kenyan living in South Africa who considers Botswana her ‘neighbour,’ said, “Botswana’s win reminds me that these things take time. We can’t afford to give up, or remain silent on everything LGBTQIA, especially within the continent.” 

For Botswana’s LGBTI community, the fight for equality nevertheless carries on. LEGABIBO plans to continue its advocacy work with cultural and religious leaders who have been shown to be crucial in shifting attitudes on homosexuality in sub-Saharan Africa. They also intend to multiply their efforts in reaching stakeholders, within and outside the LGBTI community, to educate them on the legal changes and on how to access their rights. 

Meanwhile, in Kenya, activists are preparing for their next legal battle at the Court of Appeal. This time, however, they will have one more precedent that is African on their side. 

(Main image: Afro Woman Waving Rainbow Flag - FG Trade/Getty Images)

The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.