While Kenya recently upheld a law criminalizing gay sex, Botswana this week legalized consensual same-sex activity with a decision from their highest court. The high court in the capital of Gaborone determined that the colonial-era law was discriminatory, unconstitutional, and against the public interest.
The case that paved the way for the decision was brought by a 21-year-old student at the University of Botswana, identified in court documents with the initials L.M., who argued that society had changed and that homosexuality should be accepted. The challenge followed a 2003 case that unsuccessfully tried to overturn the laws.
Three judges voted unanimously to revoke the anti-gay laws.
”A democratic society is one that embraces tolerance, diversity and open-mindedness,” CNN reported Justice Michael Leburu saying when the decision came down. “Societal inclusion is central to ending poverty and fostering shared prosperity.”
Justice Leburu also said that the old laws were a “British import” from the time of colonial rule, and that they had been implemented “without consultation of local peoples.” Activists, some draped in rainbow flags, had packed the courtroom to await the decision.
“It is a historical moment for us,” Matlhogonolo Samsam, a spokeswoman for Lesbians, Gays, and Bisexuals of Botswana, a gay rights group, told the New York Times. “We are proud of our justice system for seeing the need to safeguard the rights of the L.G.B.T. community.”
Botswana’s penal code had previously criminalized “carnal knowledge of any person against the order of nature,” which could be punished by up to seven years in prison. Another section criminalizing “acts of gross indecency” in public or private carried up to two years in prison.
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