Many of the laws in place in Botswana date back to pre-independence when Botswana was a Protectorate of the United Kingdom. This is a common legacy of the British Empire with 41 nations within the 54-member Commonwealth having laws banning homosexuality. The majority of these states criminalise sexual orientation (or more accurately – same sex sexual acts) under laws that are derived from British Common Law, which criminalise sodomy as a form of assault. Botswana adopted the current rule of law using a dual system of customary and Roman-Dutch law operating side by side.
A brief timeline comparison with UK and South African law regarding same-sex relationships:
- 1966: Botswana gained independence from the UK
- 1967: Homosexuality was decrimialised in England & Wales
- 1990: Homosexuality was removed from the World Heath Organisations list of mental illnesses
- 1996: South Africa’s new Constitution included rights for LGBT becoming the first nation in the World to explicitly prohibit discrimination based on sexual orientation in its constitution
- 1998: South Africa banned discrimination on the basis of sexual orientation
- 2000: The age of consent was equalised at 16 in the UK for homosexuals & hetrosexuals
- 2000: On September 8, Botswana signed the ICCPR (see below)
- 2005: Civil Partnerships for same sex relationships were introduced in the UK
- 2006: South Africa legalised same-sex marriage on 1st December
- 2011: Britain announces its intention to withhold aid to countries that do nor reform anti-homosexual legislation (BBC)
- 2013: UK Same-sex Marriage became law (BBC) joining Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden & Uruguay.
The Botswana Penal Code lists homosexual sexual acts as Offences in Division III: Offences against Morality:
- Section 164: “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 offence and is liable to imprisonment for a term not exceeding seven years”
- Section 165: “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”
- Section 167: “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”
Interestingly, Mozambique has similar wording in their Penal Code, however in March 2011, the Minister of Justice declared during their Universal Periodic Review that homosexuality is not an offence in Mozambique.
The Employment Act (Amendment) 2010 prohibits employment contract termination on the grounds of sexual orientation.
The Botswana Constitution gives citizens of the country a number of rights:
- Article 3: “every person in Botswana is entitled to the fundemental rights and freedoms of the individual, that is to say, the right, whatever race, place of origin, political opinions, colour, creed or sex”
- Article 12(1): “no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence”
- Article 13(1): “no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assembly freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests”
Botswana has been party to the International Covenant on Civil and Political Rights (ICCPR) since 8th September 2000. The ICCPR prohibits discrimination on the grounds of sexual orientation as it violates 2 of its articles. Although sexual orientation is not specifically referred to in the example list, the phrasing “of any kind”, “on any ground” and “other status” can be implied to cover this:
- Article 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
- Article 26: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”