Kanane v State, Court of Appeal, 2003 (2), BLR

Judgment of the Court of Appeal at Lobatse, Botswana, found that expanding gross indecency provisions to women rectified the previously discriminatory male-only provision criminalising same-sex activity between men. The Court held in favour of the State to retain criminalisation of same-sex activity in Botswana.

The appellant had been charged under Botswana’s Penal Code with s. 164(c) ‘unnatural offences and s.167 ‘indecent practices between males’. The appellant argued that these Sections were incompatible with the Botswana Constitution and that the Penal Code discriminates against men on the basis of their gender and offends their right of freedom of conscience, expression, privacy, assembly and association entrenched in the Constitution. The Court held that the Penal Code, before being amended in 1998, was discriminatory on the basis of gender and was rightly expanded to cover same-sex activity between women. The Court agreed with the State that criminalisation of same-sex activity should remain in the statute books in Botswana.