Originally Published in the December 2019 Journal, Breaking the Silence, Pg. 5
Source: Wikimedia Commons
In June of 2019, Letsweletse Motshidiemang, a 21-year-old student at the University of Botswana, brought a case against the 1965 penal code criminalizing same-sex relations in Botswana. In a surprising shift, the High Court of Botswana deemed the law unconstitutional, overturning bans against same-sex relations. While the move may have had foundations from movements and public support in Botswana, it is firmly against the current trend of LGBTQA+ rights in Africa. Denoted as the most oppressive region for LGBTQA+ rights, Africa has seen recent negative trends in terms of the recognition of those rights and is home to some of the harshest punishments for the homosexual population. A select number of countries have been able to make progress. Botswana, in particular, owes its relatively successful advances in LGBTQA+ rights to more stable democratic practices, lower levels of corruption, and a stronger presence of political and human rights advocacy groups compared to other countries in Africa.
South Africa became the fifth country in the world to legalize gay marriage in 2006. It remains the sole country in Africa to have made this step, and an outlier at that. Due to the wide range of territories in Africa, LGBTQA+ rights drastically differ. Religious, ethnic, and cultural values vary, causing a spectrum of rights across the continent. Out of the 54 states in Africa, 34 still have laws criminalizing same-sex relationships and conduct, and four of those punish homosexuality by death. Other nations have laws against gender expression as well. In June 2019, Botswana joined the ranks of countries in Africa that decriminalized same-sex conduct.
In many regions of Africa, it is extremely dangerous and even fatal to express an identification within the LGBTQA+ community. Countries such as Uganda, South Sudan, Burundi, Liberia, and Nigeria have recently attempted to strengthen the criminalization of LGBTQA+ relations and identifications. In Kenya, for instance, a court recently overruled a case against the criminalization of sodomy, causing massive international backlash.
While it is difficult to look at the trajectory of LGBTQA+ rights in Africa as anything besides slow and frustrating, it is also important to note that there have been significant gains in countries including Mozambique, Seychelles, Guinea-Bissau, and Angola, and that there are some countries in which homosexual activity has not been criminalized to begin with. Another complicated aspect is that, despite these victories, implementation is still problematic in many regions to ensure protections and rights of the community.
In Botswana, the penal code banning same-sex relations, alongside other similar regulations in other countries, initially originated from European colonialism. Britain has a long history of criminalizing homosexuality, which influenced the laws created and implemented in former colonies including Botswana. While the independent Republic of Botswana was established in 1966, and Britain began its movement for LGBTQA+ rights around the same time, it took longer for public opinion and development of Botswana’s government (which is celebrated as one of the least corrupt in Africa) to reach the point of being able to challenge this law. Even now, the attorney general in Botswana, Abraham Keetshabe, is challenging the high court’s decision in the court of appeals.
Botswana’s court decision has been a landmark victory for the African LGBTQA+ community. As the longest continuous democracy in Africa, Botswana is considered one of the most stable and corruption free nations on the continent. Leading to the current court case decision was the recognition of the non-profit Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) by the High Court in 2014 as a legitimate entry in the Registrar of Societies. A majority of other nations, meanwhile, have not sponsored legitimization of LGBTQA+ organizations and movements. Propping up such actors raises the likelihood of increased LGBTQA+ rights exponentially, because it allows for donors to support a cause that raises awareness and exposure for more tolerance. Comments from Botswana’s President Mokgweetsi Masisi calling for recognition of the LGBTQA+ community have further added to the groundwork for the success in Botswana. This public sponsorship from the president has aided the non-profits and community in the sense that it provides a voice from a significant elected leader in society advocating for change.
It will be essential to ensure both that the appeals challenge is not successful and that implementation of these laws are carried out. A vital aspect is monitoring backlash from the opposing groups or the public to prevent lax enforcement of protections. Countries across the world have seemingly tolerant policies that are not actually carried out in reality, allowing for abuse to continue under the guise of acceptance. International support of Botswana’s decision has been heard, and diplomatic pressure from other nations to maintain legitimate acceptance of LGBTQA+ rights can ensure the sustainability of this victory. However, this would only be possible in countries like Botswana that are close to reaching increased tolerance, and where governments have enough legitimacy to effectively enforce its rulings. As Botswana’s case becomes more widely known throughout the continent, it will ideally spark hope and activism in other countries, gradually increasing exposure, acceptance, and change.