Decriminalization of Homosexuality: Critical Analysis of the Recent Botswana Judgement

DECRIMINALIZATION OF HOMOSEXUALITY: CRITICAL ANALYSIS OF THE RECENT BOTSWANA JUDGMENT

Author: Ms. Teresa Dhar, CNLU, Patna

Q1. What is the case all about?

On 11^th June, 2019, in another historic case of decriminalizing homosexuality, the Botswana High Court in LETSWELETSE MOTSHIDIEMANG (Applicant) v. ATTORNEY GENERAL (Respondent) and the LESBIANS, GAYS AND BISEXUALS OF BOTSWANA (LEGABIBO) as the Amicus Curiae, declared the Sections 164(a), 164(c) and 165 of the Penal Code as ultra vires to the Sections 3, 9 and 15 of the Constitution. The facts of this entailed a 24-year-old student of the University of Botswana who had always identified himself as a homosexual and though he tried to understand the reason for his attraction towards men, he failed to do so and also, as to why he should be treated or seen with a different lens altogether. As a result of his sexual preference, he was subjected to abject ignominy. In reference to this, the violations of his rights empowered due to Sections 164(a), 164(c) and 165 of the Penal Code were asked to be struck down.

Q2. What were the issues raised?

1. The following issues were raised before the Hon’ble Court:

(a) Whether the Sections 164(a), Section 164(c) and Section 165 of the Penal Code are ultra vires Section 86 of the Constitution in so far as the said sections are not made for the good order and governance of the Republic of Botswana?

(b) Whether the Section 164(a), Section 164(c) and Section 165 of the Penal Code) are ultra vires the Constitution in so far as Section 164 (a) and Section 164(c) is void for vagueness?

(c) Whether Section 164(a), Section 164(c) and Section 165 of the Penal Code are ultra vires Sections 3 and/or 15 of the Constitution in so far as the said sections discriminate against homosexuals?

(d) Whether Section 164(a), Section 164(c) and Section 165 of the Penal Code are ultra vires Section 5 of the Constitution in so far as the said sections interfere with the applicant’s fundamental right to liberty?

(e) Whether Section 164(a), Section 164(c) and Section 165 of the Penal Code) are ultra vires Section 7 of the Constitution in so far as the said sections interfere with the applicant’s fundamental right not to be subjected to inhuman and degrading treatment or other such treatment?

Q3. What were the arguments made by both side of the party?

1. Petitioner:

• The side petitioner vehemently opposes S.164 and S.165 as it goes against his basic fundamental rights. Section 164 states: “Any person who… has carnal knowledge of any person against the order of nature” or “permits any other person to have carnal knowledge of him or her against the order of nature is guilty of an offense and is liable to imprisonment for a term not exceeding seven years.” This, he argued violates his right and freedom to liberty, by forbidding him from indulging in sexual intercourse with another consenting adult as long as he doesn’t cause any disrespect and harm to the enjoyment of the freedoms by others. 
• Through his experience, he has shown how the laws subject him to inhuman and degrading treatment, through social control and public morality, and he is denied the only manner of showing affection physically. The LGBTQIA community in Botswana has been subjected to intense violence merely because of their choices. 
• Such law not only permits gender identity-related discrimination but also creates a negative stigma that causes a setback in getting access to healthcare services. It is a law that unnecessarily interferes in a sphere in which it should have no say unless there is no consent, the partner/s are not adults or if through such act there is harm (not moral) caused to the public. 

Respondent:

• The respondent had no expert evidence, unlike the amicus curiae, to support its case as to why homosexuality should remain criminalized. It brought out the classic argument as to certain acts against the order of nature being criminalized and not a person’s sexual orientation. 
• The respondent also spoke of Section 15 of the Constitution which prescribed limitations on the enjoyment of fundamental rights. Arguing on the ambiguity point, it submits that the definitions as given under the sections don’t lack clarity as they have been well defined – sexual intercourse meant anal penetration.
• They advocated that Bostwana’s social and moral fabric was not yet ready to accept homosexuality as a normal way of life and that, the judiciary should show restraint and defer the matter to the Parliament as the rightful adjudicator.

Q4. What did the judgment hold?

In a unanimous judgment by a bench constituting of J. Tafaj, J. Leburu, and J. Dube, J. Leburu writing for all three of the judges, rightly observes the fact that homophobia is a product of S.377 which was imported from the Colonial rule to the countries under it. The idea of homosexuality as a sin is a Christian concept and that is what the judgment endeavored to explain with a brief mention of history. 

The judge asserted that “The state cannot be sheriff in people’s bedrooms” and whatever a person’s sexual orientation be, it is a matter of choice and an attribute of his personality and not simply a “fashion statement.” The court understands that homosexuality needs no regulation and that, to show physical affection in a same-sex relationship, there is no other alternative than anal sex.

It also pertinently points out, it is not the court’s duty-bound to pronounce that it is the “public mood” that should influence the court’s decision – however, it is essential for the decision, whatsoever it may be, to be independent of such public opinion. 

The court puts much emphasis on the ideas of privacy, as entrenched in Section 3(c) and Section 9 of the Botswana constitution and dignity of an individual and propounds that these laws are inherently discriminatory and invasive of “personal dignity, privacy, autonomy, and liberty”. 

Clearly, the judiciary believes that Botswana is a nation that is “Just, Tolerant and Compassionate” and that any “criminalization of love or finding fulfillment in love dilutes compassion and tolerance.” To conclude, it aptly points out – “sodomy laws deserve a place in the museum or archives and not in the world.”

Q5. Critically analyze the judgment.

1. Nothing could more succinctly yet gracefully answer the question as to why homosexuality should be decriminalized – “What regulatory joy and solace is derived by the law, when it prescribes and criminalizes such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct?” When the Botswana high court adjudged in favor of the lakhs of people who were waiting for their love to be recognized by law, it triggered two emotions – first, pure exultation for all the wrongs that had been made right to the same-sex couple in Botswana and second, a flicker of hope that other nations, especially in Africa, who were yet to decriminalize homosexuality.  After the recent Kenyan judgment that upheld criminalization of homosexuality, this comes as a relief. This powerful judgment unequivocally upholds the rights of a group that has been denied basic rights, merely for their feelings. It answers the basic question as to what right does the State have to control an individual in the confinement of his room along with his partner of same-sex – the answer is and shall remain, none for as long as a person is engaging in physical affections with consent, the State can’t police the individuals.

However, a noted Indian scholar, Gautam Bhatia in his analysis of the same points out three critiques that need to be reiterated, which requires some serious reflection:

1. Homosexuality is referred conclusively as an “innate nature” of people over which they have no say. As he and the Kenyan judgment, EG v. Attorney General, mentions that, whether attraction towards the same sex person is inherent to the individual or is simply a matter of choice – it is still not known and the court is to best leave that matter for the individuals to decide.
2. On trying to sympathize on the fact that homosexuals are being denied “anal penetration” i.e., a particular sexual act, it kind of narrows the ambit of the fight of the LGBTQIA  to just a particular act rather than their fight for equality, dignity, and respect that is being denied to them through disparaging means.
3. The phrase “private act” as mentioned in the judgment doesn’t seem in consonance with the ideas of freedom, equality, and discrimination that it talks of. In a way, it still criminalizes “gross public indecency” and seems in contradiction to its ambition to protect the LGBTQIA community.

However, it has been noted that these fallacies will not hamper the rights to be enjoyed by the community.

But nevertheless, the court ultimately sends a strong message to all homophobic people and states that are yet to take a step forward – Love is a matter of choice, irrespective of gender and nations can’t excuse themselves from denying these rights on the ground that, the time to adjudicate in favor of it is yet to come. The time is already here.