Homosexual sex is criminalized under Botswana law as an “unnatural offence”, punishable by imprisonment for up to seven years under a Penal Code inherited from British Colonial rule. While prosecution is rare, many homosexual persons live in hiding from fear of being condemned and discriminated against. In 2014, however, the Botswana High Court held that there is no crime against being homosexual. LGBT persons continue to experience discrimination in all spheres of life in Botswana.
The Botswana Penal Code (Chapter 08:01) criminalises homosexual sex under Division 3 of the Code “Offences injurious to the public in general: Offences against morality”:
“164 Unnatural offences
Any person who-
(a) has carnal knowledge of any person against the order of nature;
(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.
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.
167 Indecent practices between persons
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.”
Recognition of same-sex relationships
Same sex relationships are not recognized in law in terms of marriage or civil unions.
Same sex couples may not adopt children.
Gays and lesbians not permitted to serve openly in the military.
Legal change of gender
Botswana citizens have no right to change their assigned gender in law.
The Botswana Constitution prohibits discrimination in terms of sections 3 and 15. The Botswana Penal Code further criminalises discrimination in terms of section 94:
“(1) Any person who discriminates against any other person shall be guilty of an offence and liable to a fine not exceeding P500 or to imprisonment for a term not exceeding six months, or to both.
(2) For the purposes of this section a person discriminates against another if on the grounds of colour, race, nationality or creed he treats such person less favourably or in a manner different to that in which he treats or would treat any other person.”
Considering the Court of Appeal’s interpretation of the Constitution in relation to same sex sexual relationships in Kanane v the State (see below), these provisions are unlikely to be understood to apply to discrimination against LGBT persons.
In contrast, however, since 2010, the Employment Act prohibits employment discrimination on the basis of sexual orientation.
In March 2013, a group calling themselves the Lesbians, Gays, and Bisexuals of Botswana (LeGaBiBo) applied to the High Court of Botswana for a constitutional review of the decision of the Director of Civil and National Registration and the Minister of Labour and Home Affairs refusing to register the organization under the Societies Act.
On 14 November 2014, the Gaborone High Court, per Rannowane J, decided in the applicants favour holding that the refusal to register LEGABIBO “was not reasonably justifiable under the Constitution”. The Court found that the refusal violated the applicants’ rights to freedom of expression, freedom of association and freedom of assembly. The Court held that “in a democratic society asking for a law to be changed is not a crime”. The Court further stated that:
“It is not a crime for one to be attracted to people of one’s own sex … . It may be that engaging in homosexual activity is outlawed. But if I were to use an example of one born left handed, if it was a crime to write with a left hand, such a person would not be punished for being left handed but for writing with a left hand just as a gay person would not be punished for being gay but rather for engaging in same sex relationship.”
While the constitutionality of the criminalization of homosexual sexual acts was not before the Court, it did hold that the protections of the Constitution were enjoyed by “all persons” in Botswana, which included gay persons. The government has appealed the decision to the Botswana Court of Appeal.
Following a charge against Mr Kanane for the crime of indecent practices with another man under section 167 of the Penal Code, he launched a constitutional challenge to the criminal prohibition. He argued that the discrimination against men on the basis of their gender offended their rights to freedom of conscience, expression, privacy, assembly and association.
The Botswana Court of Appeal, per Tebbut JP, held that it was permissible to limit constitutional rights under the Constitution where this is done in the public interest, which requires that the Court consider public opinion as the criminal provision reflected a matter of public concern. The Court reasoned that there was no evidence of public opinion before it to show that the “attitude of society in Btoswana to the question of homosexual practices by gay men and women required … decriminalization”. It held that gay men and women did not represent a group or class of persons that had been shown at that stage to require protection under the Constitution.”
March 1995: British citizen pleaded guilty to the crime of “indecent practices between males” and was fined P 1,000.
1998: LeGaBiBo founded.
30 April 1998: Penal Code amended to make lesbian sex a crime.
30 July 2003: Court of Appeal upholds the Constitutionality of the criminal prohibition against homosexual sex.
2005: LeGaBiBo’s first attempt to register with the Registrar of Societies was rejected.
February 2011: Deputy Speaker of the National Assembly, Pono Moatlhodi said to the media that gay persons were “demonic and evil” and had no place in African society, describing homosexual “behaviour as that of Western dogs”.
16 February 2012: The civil society group Lesbians, Gays, and Bisexuals of Botswana (LeGaBiBo) applies to register the organization in terms of the Societies Act. The application was rejected on 12 March 2012.
14 November 2014: The Gaborone High Court ruled in the LEGABIBO case that the refusal to register the organization was unconstitutional.
Traditional chiefs in Botswana have recognized that homosexuality has always been a part of Botswana society as is clear from the existence of the Setswana word “matanyola” to describe homosexuality.
Civil Society Organisations in LGBT Issues
LeGaBiBo (The Lesbians, Gays and Bisexuals of Botswana)
BONELA (Botswana Network on Ethics, Law and AIDS)
Postal Address: PO Box 402958, Gaborone, Botswana
Physical Address: Plot 60224, Fairgrounds Office Park, Gaborone, Botswana
Tel. (+267) 393-2516
Fax: (+267) 393-2517
DITSHWANELO: The Botswana Centre for Human Rights
Director: Mme Alice Mogwe
Postal Address: Post Bag 00416, Gaborone, Botswana
Physical Address: Plot 2732, Hospital Way, Gaborone, Botswana
Tel: +267 3906998
Fax: +267 3907778