In Context

The right to one’s sexual orientation is a highly debated issue and laws that regulate LGBTI (Lesbian, Gay, Bisexual, Transgender & Intersex) rights vary from country to country.  Homosexuality is currently illegal in 76 countries and punishable by death in 5 countries (Iran, Saudi Arabia, Yemen, Mauritiana & Sudan).  At the other end of the scale, 11 countries have so far legalised homosexual marriage with 12 further countries in the process of doing so.  Same-sex sexual activity for both males and females is legal in 17 countries in Africa.

LGBTI rights are human and civil rights and include the right to recognition of same sex relationships, the right to marry, the right to adoption, recognition of LGBTI parenting and the right to be free of all forms of discrimination.

At present, there are no international treaties dealing specifically with LGBTI rights, however the right to equality and non-discrimination found in the International Covenant on Civil and Political Rights (ICCPR) is often invoked to protect LGBTI rights.

Botswana Context

Botswana currently prohibits same sex relationships.  The Penal Code (Cap 08:01) criminalises homosexual relationships in three sections (see also Law & Constitution):

  • Section 164 ciminalises sexual acts between same sex couples which it deems “unnatural offences” which it defines as 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”.  The penalty is imprisonment not exceeding 7 years.
  • Section 165 states that that anyone attempting to commit unnatural offences is liable to imprisonment for up to 5 years.
  • Section 167 prohibits acts of gross indecency between persons whether in private or public.

During the Universal Periodic Review at the UN Council for Human Rights in January 2013, Botswana considered and rejected the recommendation by six states that it decriminalise same sex relations and same sex sexual activities (see also Law & Constitution).  The rejected recommendations were:

18. Adopt the measures necessary to combat discrimination of all kinds, including those based on sexual orientation, gender, colour, religion and political opinion (France); amend the definition of discrimination in the Constitution in such a way that it covers discrimination based on descent and abolish those laws that permit discrimination on the basis of ethnicity, language and culture (Germany); review the definition of discrimination provided under the section III of the Constitution in terms of its compatibility with the prohibition against discrimination against descent and national or ethnic origin (Canada); and abolish discrimination on the basis of ethnicity, language and culture, including de jure discrimination (Denmark)

23. Decriminalize homosexual relations and practices/consensual same-sex activities between adults (Spain, Netherlands, Slovakia, Czech Republic, Canada); and outlaw discrimination on the basis of sexual orientation (Netherlands)

24 (in part). …with regard to consensual samesex activity between adults, take measures to promote tolerance and allow effective educational programmes on HIV/AIDS prevention (Czech Republic); with the support of the international community, continue to fight HIV/AIDS (Bangladesh)

The full report is available here: UPR Recommendations and Responses 2008

Thanks to Dishwanelo for this information summary on LGBTI rights.