Types of criminalisation

  • Criminalises sex between men
  • Criminalises sex between women
Commonwealth member state
Penal Code 1964, S. 164 Unnatural Offences

Section 164 criminalises “Unnatural Offences”, that is any person who engages in “carnal knowledge against the order of nature”, which is not defined in the Penal Code. Case law defines this as penetration through the anus of a man or woman. The law, which carries a sentence of up to seven years imprisonment, was updated in 1998 to make it gender neutral and therefore applies to “carnal knowledge” both between men and between women.1

 

Penal Code 1964, S. 165 Attempt to commit Unnatural Offences

Section 165 criminalises attempts to commit “Unnatural Offences”. It carries a sentence of up to five years imprisonment.2

Penal Code 1964, S. 167 Gross Indecency

Section 167 criminalises “gross indecency”. It carries a maximum sentence of up to two years imprisonment and/or a fine. The law was updated in 1998 to make it gender neutral and is therefore applicable to such acts between men and between women.3

Enforcement

2017

The US Department of State Human Rights Report on Botswana found no reports of police targeting persons suspected of same-sex activity during the year.

2016

In August, the Gaborone Magistrate Court sentenced a man to three and a half years’ imprisonment, two of them suspended, for committing “unnatural acts”. The man was later pardoned by President Khama, along with 580 prisoners, as part of the 50th Independence Day celebrations. There were no reports that the police were targeting individuals suspected of same-sex sexual activity during the year.

2014

The 2014 US Department of State Human Rights Report suggests that police do not actively target gay people on the basis of their sexual activity.

In March, a member of Lesbian, Gays, and Bisexuals of Botswana (LeGaBiBo), an LGBT organisation working in Botswana, explained the effect of the lack of prosecutions: “one has to use a magnifying glass to read between the lines because it remains unclear whether homosexuality is illegal in our country or not. As a result, many homosexuals hide their feelings, justifying this by saying that the LGBT community is lucky and that they should be grateful that Botswana is not too extreme. They don’t want to complain about unfair treatment.”

The Immigration and Refugee Board of Canada highlighted two 2014 cases where individuals were subject to arrest under the country’s anti-gay laws. The first was dismissed due to insufficient evidence and the second involved non-consensual sex. The report stated that the last reported case on Botswana’s anti-gay legal provisions was in 2003 where the Court found “no evidence that the approach and attitude of society in Botswana to the question of homosexuality and to homosexual practices by gay men and women required a decriminalization of those practices, even to the extent of consensual acts by adult males in private”. Since this there have been no further prosecutions for engaging in same-sex sexual conduct.

Statements by Public Figures

2018

In November, Botswana‘s new President, Mokgweetsi Masisi, gave a speech against violence on women and children in which he also emphasised the rights of LGBT people. He made it clear that LGBT people should have the same rights as every other citizen: “There are also many people of same-sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated,” Masisii told the crowd. “Just like other citizens, they deserve to have their rights protected.”

There are also many people of same-sex relationships in this country […] Just like other citizens, they deserve to have their rights protected.

Mokgweetsi Masisi, President of Botswana

2016

In February, Botlhogile Tshireletso, Assistant Minister of Local Government and Rural Development, urged the country to stop discriminating against LGBT people, stating: “Batswana are ready to talk about some of these things because they said they want to be a tolerant society. We should stop discrimination of these minority groups.” MP Pius Mokgware agreed with the Minister stating, “We should live in the times. We cannot discriminate people according to their sexual orientation, the minister is on point.”

We cannot discriminate people according to their sexual orientation, the minister is on point.

Pius Mokgware, MP

In an interview with Africa Renewal in January, former President Festus Mogae stated: “In my long interaction with LGBT groups and extensive research, I have come to the realisation that we are limited in our knowledge and must be open to new discoveries. I have been converted; I used to hold the same beliefs as my counterparts… Leadership is not always about you, it is about people and often circumstances. I call upon African leaders to open up to second generation rights.”

2014

Since stepping down as President, Festus Mogae has openly called for the decriminalisation of homosexuality as a means of combating HIV/AIDS. In May he stated: “We do not give a damn about how they got infected. We have to give them treatment. The reason why I call upon police not to harass sex workers is because that has the potential to deny them access to treatment and prevention of HIV infection and interventions.”

2013

The National Assembly and the National AIDS Council held open debates on homosexuality in August. The National AIDS Council which consists of the Vice-President, the Minister of Presidential Affairs and Public Administration, the Chairman of Ntlo ya Dikgosi (House of Chiefs), among other prominent office-bearers, discussed the outcome of a report submitted by the Ministry of Health. The findings of the Ministry of Health’s study reportedly accepted the existence and reality of homosexuality in the country; an existence which had previously been denied. It was reported that the study will be analysed and aligned with laws, policies and other issues and a policy brief will be presented to the next National AIDS Council meeting in November.

Reverend Orebotse Matlhaope, President of the Evangelical Fellowship of Botswana, warned in August against legislation that would protect gay rights: “Apart from encouraging sexual deviation and depravity, we do not see how homosexuality, if decriminalised and recognised, can add value to our existence as a nation.”

2011

In March, it was reported that former President, Ian Khama, stated that gays are “fine by him” so long as they “do their things” where nobody can see them.

In February, Pono Moatlhodi, Deputy Speaker of the Botswana National Assembly, reportedly told a meeting on HIV prevention that gay people should be killed: “On this point I would agree with Zimbabwean President Robert Mugabe who once described that behaviour as that of western dogs; I don’t like those gay people and will never tolerate them. They are demonic and evil… When there are so many women in this country, why would anyone choose to have sex with another man? The Bible does not agree with such a thing and therefore it is evil; if we give prisoners condoms, are we now saying they are free?”

Persecution and Discrimination

2018

According to local LGBT rights group LeGaBiBo, a video released in November shows a transgender woman being violated by members of the public, including men, women and security guards, while she helplessly laid on the ground exposed. “The perpetrators are illuminating the most intimate parts of her body, in addition to beating, slapping, kicking, verbally attacking and filming the incident,” said the organisation. “All the while people are looking on, laughing and making derogatory comments. To add insult to injury, the video has been posted on social media to further humiliate her.”

2017

The US Department of State Human Rights Report on Botswana stated that LGBT organisations reported incidents of violence, social harassment and discrimination against LGBT people, and the victims of such incidents rarely reported to police due to stigma and intimidation.

Legislative News

2018

During its third UPR cycle, Botswana noted 12 SOGI recommendations, six of which called for the decriminalisation of consensual same-sex sexual acts.

2017

In December, the Gaborone High Court ordered the Registrar of Births and Deaths to amend the gender marker on a transgender applicant’s birth certificate from male to female within seven days, and to reissue the applicant’s national identity document within 21 days.

In November, Letsweletse Motshilemang filed an application to the Lobatse High Court challenging the constitutionality of Sections 164(a) and 167 of the Penal Code.

In September, the High Court ruled in favour of a transgender man who sued the Registrar of National Registration to change the gender indicated on his government-issued identity document from female to male.

At the UN Human Rights Council’s 36th session in September, a resolution was passed that, among other issues, condemned the enforcement of the death penalty for consensual same-sex relations. Botswana voted against the adoption of the resolution.

2016

At the 71st Session of the UN General Assembly in December, the mandate and appointment of the Independent Expert on SOGI was challenged by the African Group; the group was led by Botswana’s ambassador to the UN, stating: “[n]o national or groups of nations should pretend to hold a monopoly over cultural norms and therefore seek to impose those values on others.”

In March, the Court of Appeal upheld a 2014 High Court ruling ordering the government to formally register LeGaBiBo. LeGaBiBo has since participated in government-sponsored events. In November 2014, the Gaborone High Court had overturned the Department of Labour and Home Affairs’ refusal to register LeGaBiBo. The case was brought by 20 individuals who argued that the refusal to register their organisation violated their constitutional rights, including their rights to freedom of association, freedom of expression, and equal protection of the law. The Botswana Government had consistently refused to permit the registration of LeGaBiBo on the grounds that it “promoted an illegal activity”. The High Court held that this was unconstitutional. The judgment in the High Court did not address the criminalisation of same-sex sexual conduct.

2015

In June, the Botswana Government and the National AIDS Coordinating Agency (NACA) considered introducing a policy that will allow the distribution of condoms in prisons. The government had previously refused to distribute condoms to prisoners as a means to fight the spread of HIV/AIDS.

The acting Permanent Secretary in the Ministry of Health, Tebogo Banamile, revealed in May that some international donors had withdrawn their financial aid to Botswana because of the country’s anti-homosexuality laws.

In March, Botswana voted in favour of a failed Russian proposal at the UN General Assembly’s Fifth Committee (Administrative and Budgetary) that sought to overturn the Secretary-General’s decision to extend UN staff benefits to same-sex married couples.

It was reported in May that the British High Commission in Gaborone provided financial support to the Botswana Network of Ethics, Law and HIV/AIDS (BONELA) and LeGaBiBo to conduct a policy dialogue to create awareness among policy makers on issues of sexual orientation and gender identity.

2014

In September, the UN Human Rights Council passed a resolution condemning violence and discrimination based on sexual orientation and gender identity. Botswana opposed the resolution.

In June, Botswana supported an African Commission resolution on protecting sexual and gendered minorities from violence: “We join the High Commissioner in welcoming the call last month by the African Commission on Human and Peoples Rights, at its 55th Session, for States to take steps to protect persons from human rights violations on the basis of sexual orientation and gender identity.”

2013

In its second UPR cycle, Botswana rejected recommendations to decriminalise same-sex sexual activity and implement anti-discrimination laws that encompass discrimination based on sexual orientation. The delegation noted that: “Botswana does not accept the recommendation. Botswana, as a predominantly Christian nation, has not reached a stage in which she can accept same sex activities. It will be necessary to conduct educational campaigns on this issue so that when the laws are changed people will be carried along.”

While stressing the democratic process, however, Botswana noted the role of civil society in educating the people and in advocating for change on the issue of the criminalisation of homosexual activities. It repeated its openness towards organisations advocating for the issue.

2010

In September, the Botswana Government passed an amendment to its Employment Act (1983) that prohibits the termination of contracts of employment based on an individual’s sexual orientation, or health status (including HIV/AIDS status).

Footnotes
1. Penal Code 1964, S. 164 Unnatural Offences

“Any person who-

(a) has carnal knowledge of any person against the order of nature… or

(c) permits any other person to have carnal knowledge of him or her against the order of nature, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.” Full text.

2. Penal Code 1964, S. 165 Attempt to commit Unnatural Offences

“Any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment for a term not exceeding five years.” Full text.

3. Penal Code 1964, S. 167 Gross Indecency

“Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or private, is guilty of an offence.” Full text.

Keep in Touch

Sign up to our newsletter for updates on key legal challenges to anti-LGBT laws around the world, news on the reform of discriminatory laws in the Commonwealth, comment from our Director on landmark judgments and employment opportunities at the Trust.

SIGN UP FOR OUR NEWSLETTER