By Raj Krishna and Alivya Sahay
INTRODUCTION AND BACKGROUND
“Human dignity is harmed when minority groups are marginalized.”
– Judge Michael Leburu
On 11th June, Botswana’s High Court in the case of Letsweletse Motshidiemang v Attorney General struck down the colonial law which criminalized homosexual acts between two consenting adults with up to seven years in prison. The three judge bench of the Botswana High Court unanimously held that laws criminalizing same-sex relations are unconstitutional and need to be struck down. Judge Michael Leburu, one of the judges in this case observed that laws banning gay sex are discriminatory in nature. It is because sexual orientation of a person is not a fashion statement. It is an important attribute of one’s personality.
It may thus be concluded that the reasoning of the Botswana High Court in this case is quite similar to the reasoning extended in the famous Indian case of Navtej Johar v Union of India wherein the Indian Apex Court struck down the part of law [Section 377, Indian Penal Code, 1860] which criminalized homosexual acts between consenting adults.
The petition in this case was filed by Letsweletse Motshidiemang, a student of University of Botswana. On 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana, (LEGABIBO) to join the case as amicus curiae.
The applicant in this case contended that Sections 164 (a) and 167 of the Penal Code are unconstitutional in nature because they violate the fundamental rights of liberty and privacy. The applicants argued that these sections violated his right and freedom to liberty as he was being subject to abject ignominy. These laws subjected the homosexual community to brutal and debasing treatment, through social control and public morality. It is a law that superfluously meddles in a circle in which it ought to have no say except if there is no assent, the partner/s are not adults or if through such act there is harm (not moral) caused to the public.
Whereas the Deputy Attorney General on behalf of the Government argued that these sections are constitutional in nature because it prohibits only certain kinds of sexual acts, which may be performed by both heterosexuals and homosexuals. The respondent likewise discussed Section 15 of the Constitution which recommended confinements on the enjoyment of Fundamental rights. The respondent supported that Botswana’s social and moral fabric was not yet prepared to acknowledge homosexuality as a typical lifestyle and that, the judiciary ought to show limitation and concede the issue to the Parliament as the legitimate adjudicator. It brought out the contention as to specific acts which are against the order of nature being condemned and not an individual’s sexual orientation. It was thus argued that these laws do not discriminate on the basis of sexual orientation.
JUDGMENT AND ITS ANALYSIS
The judgment of the High Court begins with the historical evolution of the offence of sodomy. Bible considers sodomy as an offence [Both Old and New Testament prohibits sodomy]. As a result, United Kingdom made Sodomy a penal offence in order to protect the Christian principles. This was incorporated in their criminal codes. With the advent of colonialism, the offence of sodomy was henceforth imported into the British colonies during the 17th-20th centuries. However in the year 1967 United Kingdom decriminalized homosexuality vide Sexual Offences Act of 1967. Since then many countries like Angola, South Africa, Mozambique, Canada, United States of America, have decriminalized homosexuality.
After going through the submissions of both the parties the Botswana High Court unanimously held that Sections 164(a) and 167 of the Botswana Penal Code violated the values and customs of the Botswana people, and that it was discriminatory in its essence and that it served no public interest per se. The Court held that in matters where rights and freedoms are constitutionally conferred on persons, any derogation from such rights and freedoms ought to be narrowly and strictly construed. To justify such derogation, it is incumbent upon the justifier to prove that the measures adopted satisfy a particular public imperative or objective and further that such a measure is reasonable, within our democratic dispensation which the government failed to prove [Paragraph 81 of the Judgment].
The elemental point of this historic judgment is that it sticks out for advocating the value of pluralism and inclusiveness – for identifying the various ways of choosing one’s identity and life choices. As a result the judges in this case set aside the provisions of a Victorian-era 1965 corrective code which rebuffs same-sex relations with as long as seven years in jail and also requested that the laws be changed.
In the Kanane case of 2003, the Botswana Court of Appeal held that it was not the right time to decriminalize same-sex relations. However the High Court of Botswana did not consider the Kanane case while deciding this case because no expert evidence was presented in that particular case. In addition, the Court in that case had not even dealt with the arguments on privacy, dignity, and indirect discrimination which it did in the present matter [Paragraph 171 of the Judgment].
Consequently, the High Court in this case rightly observed that the impugned provisions forced an individual to engage in private sexual expression not according to his orientation, but according to statutory dictates [Paragraph 144 of the Judgment]. It is because Sections 164 (a) and 167 denied homosexuals the privilege to sexual independence and the privilege to a decision of a sexual partner, decisions that fall decisively inside the space of individual freedom [Paragraph 151 of the Judgment].
The High Court in this case also engaged in an interesting discussion on the right to privacy. The Constitution of Botswana [Sections 3(c) and 9] defines “privacy” in its classical sense, as pertaining to spaces – the home, property, freedom from an unreasonable search, and so on [Paragraph 116 of the Judgment]. As a result the court refused to limit privacy to the merely spatial arena, instead – in line with comparative jurisprudence – extended it to include decisional autonomy and the privacy of intimate choice, free from State control. [Paragraph 122 of the Judgment]
The court in this case also made a reference to Section 15(3) of the Botswana Constitution which defines discrimination. Under the Botswana Constitution Discrimination is defined as affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, and place of origin, political opinions, color, creed or sex. The court in its judgment has opined that the Anti-Discrimination law needs to be such that it addresses the concerns of not only the past and the present generations, but also the future generations who may face discrimination at the hands of majority.
Depending upon both similar law and proof (counting proof given by the Applicant, a gay man), to hold that homosexuality laws – whatever be the phraseology used – “had the impact of stigmatizing the LGBTQ populace, “rendering them a criminal, or an “unapprehend felon”, always on tenterhooks, waiting to be arrested.” This in turn, conclusively proved the fact that the sections were discriminatory in its substance as the Constitution of Botswana prohibits even indirect discrimination.
THE WAY FORWARD
Homosexual relationships are illegal in more than 70 countries all over the world. Almost half of them are in Africa where homosexuality is still a penal offence. Further the present Botswana High Court ruling has come just two weeks after the Kenya’s High Court judgment wherein the Kenyan High Court upheld the law criminalizing homosexuality. As a result it has been welcomed by United Nations and other Human Rights Organizations all over the world.
Previous rulings in Botswana had partially acknowledged the rights of lesbian, gay, bisexual and transgender people, including their right to equal protection before the law. However this time the Court struck down the very provision criminalizing homosexuality; thereby stating that sodomy laws have no place in liberal democracies. It can thus be inferred that arguments like “public morality” and “deference”, which once held powerful sway over the minds of judges are losing their relevance.
African nations such as Mozambique, Angola and Seychelles have also decriminalized homosexual activity between the consenting adults. In September 2018, the Indian Apex Court in the case of Navtej Singh Johar and Ors. v. Union of India decriminalized homosexual acts between two consenting adults. Taiwan became the first Asian country to legalize same-sex marriage. Recently the lower house of the Bhutan parliament decriminalized homosexuality.Consequently it can be said that the judgment of Kenyan High Court, in the existing circumstances is an aberration and should get rectified in appeal.
However, in July 2019 the respondents in this case i.e. the Government of Botswana filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. This move of the Government has been criticized by Human Rights Group all over the world. Thus, one can now only hope that the Court of Appeal will not interfere with the High Court’s decision and the present High Court ruling will remain till time everlasting.
[The authors are 5th year and 3rd year law students at Chanakya National Law University, Patna respectively.]
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