Justice Michael Leburu, in delivering his judgement, said that a democratic society is characterised by “tolerance, diversity and open-mindedness.”
He added that “societal inclusion is central to ending poverty and fostering shared prosperity”, and that “human dignity is harmed when minority groups are marginalised”.
The judge also stressed that “Sexual orientation is not a fashion statement. It is an important attribute of one’s personality.”
Letsweletse Motshidiemang, a 21-year-old University of Botswana student, had first brought the issue to the Botswana High Court, arguing that society has changed and that homosexuality was more widely accepted, according to local media.
Outreach worker Thato Game Tsie told The Guardian that the repeal of the homophobic provisions will enable the LGBTQ community to seek access healthcare and treatment more easily.
“There are many services we require as gay men that some nurses are not aware of, and if we go to a government hospital there will be those negative comments said to you,” said Game Tsie. “So we just want to be free to access these services.”
Coordinator of Botswana’s prominent LGBTQ rights group Legabibo, Anna Mmolai-Chalmers, similarly told CNN that the High Court’s verdict will assist LGBTQ individuals in getting healthcare and treatment more freely.
“Before [this], we were struggling. People have been hiding,” she said, adding that the High Court’s decision “can make a massive change for our lives”.
“The court has upheld our dignity, our privacy, and our liberty … It means freedom,” said Mmolai-Chalmers.
Legal policy director at Legabibo, Caine Youngman, said that the verdict “hit home”.
“I’m a gay man. I’ve been out for many years. Now I can live with my partner without worry,” Youngman told CNN.
Human rights lawyer Keikantse Phele said that while the judgement is “a welcome development,” there is still “lots of work that needs to be done in terms of access to all services, spaces and development.”
Certain legal provisions such as the 2010 Employment Act, which makes it illegal for employers to terminate contracts on the basis of sexual orientation, and the court rulings in Oct and Dec 2017 which paved the way for transgender persons to make changes to their official gender on government identity documents, have been implemented in Botswana.
Previously, the Botswana Penal Code classified same-sex relations as “carnal knowledge of any person against the order of nature,” which carried the maximum punishment of seven years’ imprisonment under Section 164.
Section 167 made “acts of gross indecency”, whether in public or private, an offence that carries a jail term of up to two years.
28 out of 49 countries in sub-Saharan Africa have retained colonial-era laws penalising same-sex relationships, which are “are a hangover from decades of British rule, with sections inspired by King Henry VIII’s Anti-Buggery Act of 1533”, PinkNews reported.
Same-sex relationships are punishable by death in parts of Nigeria and Somalia and in the whole of Sudan. In Tanzania, persons convicted for engaging in same-sex relationships may face lifetime imprisonment.
The attitudes of conservative leaders have also solidified homophobic sentiments in many countries in the continent, in which they “openly and falsely accuse LGBTI individuals of spreading HIV/AIDS and of ‘converting’ children to homosexuality,” according to a report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).