Identifying Injustice: Decriminalization of Section 164

Are you wondering why YOU need to come to the table and engage in talks to repeal Section 164 of the Botswana Penal Code?

Botswana’s Constitution guarantees the fundamental rights and freedoms of every person in Botswana, which includes LGBTI persons.

Being gay, lesbian, bisexual or transgender is not a crime in Botswana. However, two provisions in the Penal code of 1964 criminalizes same-sex sexual practices. Section 164 (a) and (c) classifies sexual acts between same sex couples as ‘carnal knowledge against the order of nature’ to which the penalty is imprisonment not exceeding seven years. Section 167 of the Penal code also terms same-sex sexual practices as acts of gross indecency regardless of where it happens (private or public).

  1. Criminalization strips LGBT of their dignity to live holistic lives as human beings; it strips us of the dignity enshrined in the right to privacy.
  2. Criminalization works against working solutions to achieve HIV programming goals for Key Populations identified by WHO, UNAIDS and the Botswana Ministry of Health and Wellness. The continued criminalization of consensual sexual acts between persons of the same sex is an onerous legal barrier in the context of HIV, diminishing access to health and HIV related services for LGBT persons in Botswana.
  3. LGBTI risk being arrested and imprisoned, violent encounters, abuse of all forms, stigmatization because perpetrators have criminalizing laws on their side. It leads to victimization and societal marginalization of already vulnerable populations, including LGBT persons, women who sex with women (WSW) and men who have sex with men (MSM) by perpetuating stigma, violence, harassment, blackmail and discrimination.
  4. Stigmatization and marginalization of LGBT people go unpunished, thus reinforcing prejudice from the public and service providers.
  5. The shame and humiliation of LGBT experiences in the media, public spaces, homes, work places and school settings is supported and reinforced by criminalization.
  6. Criminalization impairs development and poverty reduction. It hinders homosexuals to be players and competitors in the economy and work spaces.
  7. Criminalization results in LGBT living in constant fear of arrest, harassment, detention, prosecution, blackmail, extortion and conviction and surveillance.
  8. Criminalization makes LGBT people outlaws leaving no space both in public and private where people can simply be themselves.
  9. Criminalization denies us freedom from inhuman and degrading treatment and freedom prosecution.
  10. Our equality before the law and equal protection of the law is infringed by Section 164 of the Botswana Penal Code.



For more information, please contact LEGABIBO on +267 317 74 25.